Full opinion text
PER CURIAM. The court is divided. Five judges in two groups (Judges Posner, Flaum, and Kanne in one; Judges Easterbrook and Tinder in the other) vote to affirm the judgment of the district court. Judge Sykes votes to remand with instructions to dismiss the case for want of standing to sue. The remaining four judges (Chief Judge Wood and Judges Rovner, Williams, and Hamilton) vote to reverse. Because no position commands a majority, the judgment of the district court is affirmed by our divided court. Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112, 19 L.Ed. 154 (1868).
POSNER, Circuit Judge, joined by Circuit Judges FLAUM and KANNE concurring in the judgment. The plaintiff was arrested in the Village of Woodridge, Illinois, for shoplifting, an Illinois Class A misdemeanor. 720 ILCS 5/16-25. Upon arriving at the police station he was told that an administrative fee of $30.00 is required upon completion of any custodial arresf/booking procedure. He paid the $30 on the spot, posted bond, and-was forthwith released, without being jailed. He later pleaded guilty to the shoplifting charge and was ordered to undergo 12 months of court supervision and to pay fees and fines totaling $785 (on top of the $30 fee that he had paid at the police station). He claims to have completed his period of supervision successfully, and that as a result the shoplifting charge was dismissed, “without adjudication of guilt,” pursuant to 730 ILCS 5/5 — 6— 3.1(f)- The defendant (the Village of Woodridge) denies that the plaintiff obtained such a dismissal, but since the complaint was dismissed on the pleadings, with no findings based on evidence, we’ll assume that the plaintiffs allegation is correct. Nothing turns on whether it is or is not correct, however, as we’ll see. The suit (a class action suit, but dismissed by the district judge before he decided whether to certify a class) challenges the constitutionality of subsection 5-l-12(A) of section 5-1-12 (captioned “Administrative Fees”) of the Woodridge Village Code. The subsection imposes a “booking fee” of $30 “when posting bail or bond on any legal process, civil or criminal, or any custodial arrest including warrant.” Presumably, “when posting” means “on a person who posts.” The subsection is poorly drafted; its poor drafting will figure in our analysis. Although the ordinance has been repealed and the repeal moots the plaintiffs request for declaratory and injunctive relief, it occurred after he paid his $30 and so does not nullify his claim for damages. The plaintiff appealed and a panel of this court affirmed the dismissal of the suit by a split vote. 739 F.3d 984 (7th Cir.2014). Judge Stadtmueller of the Eastern District of Wisconsin, sitting by designation, wrote the majority opinion. Judge Sykes wrote a concurring opinion and Judge Hamilton a dissenting opinion. The plaintiff petitioned for rehearing en banc, and his petition was granted. Judge Hamilton’s dissent assumed that the ordinance requires imposition of the $30 charge on anyone who’s arrested, whether or not he’s released from custody immediately either because he posts bail (that is, pays money out of his own pocket to be released) or posts a bond (borrows the required bail money). There are false arrests, how frequently or infrequently in Woodridge we have no idea, and to be forced to pay even a small amount of money for being falsely arrested may present serious constitutional issues. But the court doesn’t have to decide any of those issues — indeed, it should not reach them. There is a critical difference between a fee for posting bail and a fee (if that’s the right word for it) for being arrested. To be released on bail, whether having been arrested falsely or not, is a benefit that the Village of Woodridge confers on the people whom its police officers arrest. Most people who are arrested do not want to spend any time in jail, and this is true whether or not there are solid grounds for the arrest, as there were in the case of our plaintiff. He preferred to pay the cost of a bail bond ($150, which was 10 percent of the amount of bail required for him to be released, because his arrest had been for a Class A misdemeanor; see 720 ILCS 5/16-25(a)(l), (f)(1); Ill. Sup.Ct. R. 528(c)). The cost of the bond was borne by the court and so ultimately by the county or the state. (Illinois does not permit use of commercial bondsmen.) But the Village doubtless bore some expense as well, in making sure that the bond was proper and therefore that the plaintiff could and should be released pending trial. County sheriffs are authorized to charge a fee for bond services, see 55 ILCS 5/4-5001, and in fact DuPage County (in which Wood-ridge is located) after a cost study set its bond fee at $30. DuPage County Code § 20-130. The County’s cost study found that the cost, per person arrested, to the Sheriffs Department of providing bond was $44.59. DuPage County Sheriff Cost of Service Analysis 1-2 (Aug. 9, 2002). On the basis of the study the County raised its fee for the service, which had been $25, to $30. It’s thus no surprise that Woodridge, when an arrest is made by its officers rather than by the County Sheriffs police, charges the same fee. There is no contention that for the same service provided by the Village a fee of $30 is excessive; the County study suggests if anything that the fee doesn’t cover the Village’s costs. Anyway the constitutionality of a fee for a government service does not depend on proof of an exact equality between the cost of the service and the size of the fee. Massachusetts v. United States, 435 U.S. 444, 464-67, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978); Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir.2014); Oneida Tribe of Indians of Wisconsin v. Village of Hobart, 732 F.3d 837, 841-42 (7th Cir.2013); Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 728-29 (7th Cir.2011) (en banc); Broussard v. Parish of Orleans, 318 F.3d 644, 660 (5th Cir.2003) (“even though the connection between the bail fees charged and the administration of the bail-bond system may be somewhat tenuous, ... arrestees have failed to present evidence sufficient to show that the fees imposed are arbitrary”); compare State v. Gorman, 40 Minn. 232, 41 N.W. 948, 949 (1889). If, then, Woodridge’s ordinance imposes the $30 charge only when the person arrested “post[s] bail or bond,” the charge is a lawful fee for a government service and the plaintiffs case collapses. Schilb v. Kuebel, 404 U.S. 357, 370-71, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971), states that “ § 110-7 [of Article 110 of the Illinois Code of Criminal Procedure of 1963] authorizes retention of the 1% as ‘bail bond costs.’ This is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110-7. This conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquitted or discharged criminal defendant, and by the Illinois court’s own determination that the charge under § 110 — 7(f) is an administrative fee and not a cost of prosecution imposed under [Illinois law] only upon the convicted defendant” (citations omitted). And in Payton v. County of Carroll, 473 F.3d 845, 852 (7th Cir.2007), we read that “the sheriffs have a legitimate interest in recouping some of the costs of administering the bail system. If they had to offer another separate set of hearings devoted only to these small administrative fees, they might opt out of the bail bond process altogether — a step that Illinois would permit them to take. Every detainee would then need to wait for the office hours of the county clerk, rather than the subset of detainees who now elect that option. We conclude that plaintiffs have not stated a claim for a deprivation of due process.” The Supreme Court held many years ago, in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), that the right to travel abroad is a “liberty” protected by the Constitution’s due process clauses. Nevertheless you must pay for a passport to be allowed to travel abroad. Similarly, you have a right not to be arrested if there is no probable cause to arrest you; but if you have the misfortune to be wrongfully arrested (though the arrest of the plaintiff in this case was not wrongful), you still must post bail if you want to avoid being jailed pending a judicial determination whether there was probable cause to arrest you. The right to bail, like the right to travel abroad, is a valuable right for which the person seeking it, whether guilty or innocent, must pay. That is what Schilb and Payton hold. The $30 fee is a part of that cost — a small part. The plaintiffs counsel tells us that the $30 “booking fee” provision is unique among the provisions of the ordinance because it alone imposes a fee for what may be innocent conduct mistakenly believed by police to be illegal. He instances the $15 fee for “release of [an] impounded dog or cat.” But of course a dog or cat may escape the owner’s control, and later be impounded, without fault on the owner’s part. The animal may have been stolen, or have escaped from its home because a careless workman had left a door or window ajar, or been lured from its litter box by a rogue Woodridge police officer with catnip. Even in such cases, impounding the animal confers a benefit on the owner for which he must pay despite his lack of fault. Or consider the Village’s $250 “towing fee”: the owner must pay to recover his car even if he believes with good reason that the car was towed in error from a legal parking spot. It is the same in the false-arrest case if the arrested person wants to be bailed out. This discussion leads to the critical issue presented by the appeal: the scope of the “booking fee” provision. It is unclear. The parties interpret it to mean that if either you are arrested, or you post bail or bond in respect of some other form of “legal process,” you must pay the $30. But there is another plausible interpretation. Remember what it says: “when posting bail or bond on any legal process, civil or criminal, or any custodial arrest including warrant,” you must pay the charge. This can be read to mean that you must pay only when posting bail or bond in connection with any legal process, including a custodial arrest pursuant to a warrant. The “custodial arrest” clause is, on this interpretation, redundant (for custodial arrest is a form of legal process), but redundancy is common in statutes, and probably more so in village ordinances; a village may not have the resources for assuring highly professional legal draftsmanship. If we accept the plaintiffs interpretation we create a serious constitutional issue— whether government may charge a person a “fee” (the plaintiff admits that the $30 charge is a fee rather than a fine) merely for being arrested, even if, as things turn out, he has been falsely arrested. As is apparent from Judge Hamilton’s panel dissent, adopting the plaintiffs interpretation of the ordinance would plunge the court into a swamp of issues involving both procedural and substantive due process, and maybe equal protection as well. We are adjured by countless Supreme Court decisions to avoid statutory interpretations that raise serious constitutional issues, and not just interpretations that if adopted would render a statute unconstitutional without further analysis. In the words of Justice Holmes, “the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same.” Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (concurring opinion) (emphasis added); see also Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Rust v. Sullivan, 500 U.S. 173, 190-91, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Matthew C. Stephenson, “The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs,” 118 Yale L.J. 2, 36-39 (2008). This corollary of the “constitutional avoidance” doctrine — a doctrine that in its original form required “that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895) (emphasis added); see also Parsons v. Bedford, 28 (3 Pet.) U.S. 433, 448-49, 7 L.Ed. 732 (1830) (Story, J.) — has been criticized. See Henry J. Friendly, Benchmarks 211-12 (1967); Frederick Schauer, “Ashwander Revisited,” 1995 Sup.Ct. Rev. 71, 74. But it endures, and binds us. There are limits to interpretive freedom, and thus to the reach of the constitutional avoidance doctrine. The interpretation that avoids having to grapple with difficult constitutional issues must be reasonable to be a serious candidate for adoption. But those limits are not exceeded by an interpretation that confines the $30 booking fee to cases in which a person arrested in Woodridge seeks bail or bond. It’s like interpreting the phrase “my cat enjoys jumping on trampolines and beds” to mean that she enjoys jumping on both things, as opposed to her enjoying jumping only on trampolines and, separately, enjoys beds for reasons unrelated to jumping on them. The latter interpretation, which corresponds to the interpretation urged by the plaintiff in this case, is actually less plausible than the former interpretation, the one that spares us from having to resolve serious constitutional issues. The plaintiffs lawyer emphasizes that the ordinance makes no provision for refunds, but there is no reason for a refund when a valuable service, such as assisting in obtaining bail, is rendered. Granted, the title of the provision— “booking fee” — points to an arrest; the arrested person is booked even if he does not post bail or bond. But a glance at the other provisions of the ordinance reveals carelessness in titling. For example, the provision imposing a “towing fee” is not imposed every time a vehicle is towed by the Village, even if the vehicle was towed because its driver or owner was arrested; it is imposed only “on an arrestee any time a vehicle release form is required.” The opening sentence of the ordinance states that it imposes “fees for the following activities and purposes,” and the activity for which the booking fee is imposed is “posting bail or bond on any legal process,” including the legal process that consists of a custodial arrest pursuant to a warrant. Another support for this analysis is the earlier reference to the $30 service fee charged by DuPage County for arranging bail for an arrested person. There is no suggestion that the County’s fee is for the “service” of arresting. The fact that the Village of Woodridge charges the identical fee is evidence that like the County’s fee it’s a fee for arranging for a bail bond— which is not to say the Woodridge police may not be treating it as a fee for arrest, but that is a separate issue, taken up later. The suggested interpretation does less violence to the provision’s “plain meaning” than the Supreme Court’s interpretation of a statute which provided that “the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.” 50 U.S.C. § 403(c) (1982) (now codified at 50 U.S.C. § 3036(e)(1)). Although the Administrative Procedure Act bars judicial review of “agency action [that] is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), the Supreme Court held that termination of employment by the Director of Central Intelligence could be challenged if the challenge was based on the Constitution. This interpretation was inconsistent with the text of the employment statute read in conjunction with the APA, but the Court adopted it “to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (emphasis added). For a similar case and result, see Johnson v. Robison, 415 U.S. 361, 365-67, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Granted, the Village does not invoke the doctrine of constitutional avoidance. It comes close, however, when it says in its brief on rehearing that “the ‘Arrest Booking Guidelines’ promulgated by the Du-Page County Court provides that for misdemeanor arrests the arrestee can and should ‘be released on bond at the police station.’ ” In other words, the Village ties the fee to the bond. The arrested person pays $30 and gets bond. AJ1 the Village had to say in addition, to invoke the doctrine clearly, would have been that the fee is for the bond. In any event the purpose of the constitutional avoidance doctrine is not to benefit a party, but to minimize the occasions on which a court declares a legislative enactment unconstitutional. That declaration would be gratuitous in this case because the plaintiff suffered no harm from the alleged constitutional violation. He paid what in his county is the standard bond fee charged by local government and got the bond and spent no time in jail. What’s he complaining about? Of course in a sense it’s too late to save the ordinance by invoking the doctrine of constitutional avoidance; it’s been repealed. But for all we know, there are similar ordinances elsewhere. Remember that DuPage County charges a $30 bond fee, and (in the same section of its ordinance) it makes the fee nonrefundable — so if the plaintiff had been charged that fee and had later been acquitted, he would have had no right to get it back. Isn’t it important to make clear that a bond fee is not an arrest fee? There is a further reason not to limit the constitutional avoidance doctrine to enactments still in force. The only reason the plaintiff isn’t asking for an injunction is that the Village repealed the ordinance, thus rendering that relief (which the plaintiff had originally requested) moot. To preclude application of the constitutional avoidance doctrine whenever it was sought to be applied to a repealed statute or ordinance would disincentivize states and municipalities from repealing their enactments lest repeal lead to an inference that the previous legislation had been unconstitutional. We avoid creating such incentives in other settings. Fed.R.Evid. 407 (prior remedial measures), for example, forbids admitting evidence of a company’s redesigning a product to prove that the previous design was defective. It would be perverse to rule that had Woodridge not repealed the ordinance, the constitutional avoidance principle might save it, but because it has been repealed the Village should be liable for past damages. As noted earlier, the doctrine of constitutional avoidance functions to minimize friction between courts and legislatures (including state and municipal legislatures). The plaintiff asks us to hold that a local government of Illinois is committing grave violations of his constitutional rights — rights that might conceivably (if implausibly) be traced all the way back to Magna Carta. That imputation should not lightly be leveled against a state government entity, even as modest a one as the Village of Woodridge, Illinois. A saving construction is available to our court; we should embrace it. No court other than this court in this case has interpreted Woodridge’s “booking fee” provision. The meaning of the provision is of course an issue of Illinois law. But whether we could certify the question of its meaning to the Supreme Court of Illinois — a course, by the way, that neither party urges — and if we could whether we should, are very doubtful. Begin with “could.” The Illinois court accepts only “Certification of Questions of State Law from Certain Federal Courts,” Ill. Sup.Ct. R. 20-and “state law” may not include local ordinances. Our authority to certify questions to the Supreme Court of Illinois is similarly limited to “questions of state law.” 7th Cir. R. 52. True, the meaning of local ordinances was at issue in City of Chicago v. StubHub!, Inc., 624 F.3d 363 (7th Cir.2010), where we certified a question to that court. The court accepted the certification, but the question certified, and answered by the court, was “whether municipalities may require electronic intermediaries to collect and remit amusement taxes on resold tickets” — that is, whether this practice was permitted by Illinois state law. Whether we could certify to the Supreme Court of Illinois a question about the meaning of a local ordinance, or not, we shouldn’t do so in this case. The case doesn’t meet our standards for certification, as laid out in State Farm Mutual Automobile Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir.2001), where we said that “ ‘certification is appropriate when the case concerns a matter of vital public concern, where the issue will likely recur in other cases, where resolution of the question to be certified is outcome determinative of the case, and where the state supreme court has yet to have an opportunity to illuminate a clear path on the issue.’ We also consider whether the issue is of interest to the state supreme court in its development of state law, and the interest of future litigants in the clarification of state law” (internal citations omitted). The fact that Woodridge’s ordinance has been repealed (along with a similar ordinance of another Illinois municipality, Naperville, see Roehl v. City of Naperville, 857 F.Supp.2d 707, 709-10 (N.D.Ill.2012)) is decisive against certification. In these circumstances, given the decisions of the Supreme Court of the United States that we’ve cited, our proper course is clear: it is to interpret the “booking fee” provision of the ordinance as being limited to bail and bond cases. This is not to condone — indeed it is to raise serious questions concerning — the conduct of the Woodridge police. If they were charging the $30 fee to persons whom they arrested who did not attempt to post bail or bond (maybe persons who couldn’t or wouldn’t spare the money, or were confident of being quickly released from jail because their arrest had been a palpable mistake), those persons might well have state or federal remedies, or both. Being arrested is not a “service” to the person arrested! But the plaintiff in this ease did not want to risk time in jail. He posted bond and was released. He paid for and received a valuable service. No constitutional right of his was violated. It could be argued that even if the ordinance does not allow the imposition of an arrest fee, as distinct from a fee for a get-out-of-jail-card, a person who can prove that the Village of Woodridge has or had a policy of charging the fee to anyone who is arrested is entitled to damages from the Village. But Markadonatos is challenging the ordinance, not a policy that exists apart from it; for he is suing exclusively as a member of the class of persons to whom the ordinance has been applied, and the ordinance is constitutional if it authorizes a fee only for posting bond. Furthermore, even if the Village, or the police, have and enforce an unlawful policy of imposing the fee on every arrested person, bond or no bond, Markadonatos was not a victim of such a policy. He committed theft yet avoided for $30 (plus the $150 cost of the bond, as distinct from the Village’s help in getting him the bond) having to spend any time in jail. He got a reasonable deal. If the Village or the police have acted unlawfully toward other persons, they are the persons who have standing to sue. Giving the ordinance an interpretation that renders it constitutional leaves no basis for the suit; and, incidentally, by removing the constitutional obstacle leaves the state judiciary free to interpret the ordinance in any future lawsuit. We have no authority to give a state statute or local ordinance a definitive interpretation; that is the prerogative of the state judiciary. But when a case properly before us presents an issue of interpretation of state law, whether it is case law or legislative law, our duty is to foresee as best we can the interpretation that the state courts would adopt. The Illinois courts would doubtless prefer to interpret the pertinent provision of the ordinance to preserve its constitutionality rather than to adopt an interpretation that might render it unconstitutional. But we preserve the state judiciary’s opportunity to give or not give the ordinance a saving construction, as it wishes. The case was properly dismissed on the pleadings, because the ground for the dismissal was the answer to a question of law, namely the meaning of the relevant provision of the ordinance. A suit premised on the distinct theory that the Woodridge police commit a constitutional violation when they collect a fee (unlawfully, because not authorized by the ordinance as we interpret it) for an arrest that does not result in the posting of bail or bond might succeed, but, as we have emphasized, it is not this case. Whatever the situation of other arrested persons, Markadonatos Mmseif received a reasonable fee for a valuable service. What is his gripe? What damages has he suffered? What possible relief could a court grant him? A note in closing about the alternative ground for dismissal urged in Judge Sykes’s concurring panel opinion: lack of standing because of absence of an injury remediable by the court. Article III of the Constitution of course makes standing a prerequisite to maintaining a suit in a federal court. Judge Sykes pointed out that if the objection to the ordinance was, as it seemed to be, that it imposed a fee for being arrested with or without probable cause, the plaintiff could not make the objection a basis for a suit in federal court, because he was arrested with probable cause. There was an echo of Judge Sykes’s concern in Judge Hamilton’s panel dissent when he said that the constitutional flaw that he discerned in the ordinance was “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.” 739 F.3d at 993. The plaintiff received those full procedural protections but only after paying the fee. Yet what difference would it have made to him had he paid it after rather than before receiving them? He was arrested on January 8, 2011, and discharged from supervision on April 19, 2012. By then and probably earlier he would have, under Judge Hamilton’s conception of lawful procedure, been lawfully required to pay the $30 fee. Suppose he had instead paid it on January 8, 2012. Then, at a generous discount rate of 10 percent per annum, he incurred a present-value loss of $2.73 ($30.00 — $27.27) by having to pay in advance. De minimis non curat lex. Judge Sykes’s approach, at least if the $2.73 loss of present value is disregarded, would resolve the case on grounds of standing, requiring dismissal without prejudice. The slightly different approach taken in this opinion implies dismissal on the merits (as in the district court): the ordinance is constitutional, and, because the plaintiff posted bond and thus came within the ordinance so interpreted, was not violated and no constitutional right of the plaintiff was infringed.
EASTERBROOK, Circuit Judge, joined by Circuit Judge TINDER, concurring in the judgment. I agree with Judge Sykes that Markado-natos lacks standing to contest the application of the ordinance to persons arrested without probable cause and to contend that the Village needed to provide hearings. “[A] person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). See also Sabri v. United States, 541 U.S. 600, 608-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). But I do not join her opinion, which proposes to dismiss the entire suit for want of a justiciable controversy, because Markadonatos has standing to contest the ordinance’s application to a person arrested with probable cause, as he was. He maintains (and Judge Hamilton concludes) that the fee is constitutionally obnoxious even when the arrest is supported by probable cause and followed by a conviction. That contention is justicia-ble. Judge Posner proposes to duck that question by holding that the fee is attributable, not to the arrest, but to a person’s release on bail. I agree with his approach to the extent of saying that, if a state court could save a statute by reasonably giving it a particular construction, a federal court ought not take the matter out of the state’s hands by peremptorily declaring the statute unconstitutional “on its face” — which is to say, in every possible application. But we cannot do the construing, after the fashion of Bond v. United States, — U.S. -, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), which recently indulged a strained reading of a federal statute in order to avoid a constitutional problem. Only a state court can give an authoritative limiting construction to a state statute. If I had to make an independent assessment of the ordinance’s meaning, I would agree with Judge Posner. But our task is to resolve the parties’ dispute. Neither side has asked us to read the ordinance as applicable only to bail or to ensure that the state judiciary has room to give the ordinance a limiting construction. Instead they agree that the ordinance imposes a $30 fee on all arrests. The only justiciable subject is whether the Constitution allows the ordinance’s application to someone arrested on probable cause. And to that question the answer is yes. Probable cause justifies substantial burdens. Someone arrested on probable cause can be taken to the stationhouse, booked, and held pending bail, even if the offense is punishable only by a fine. See Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). A person taken into custody can be held as long as 48 hours before seeing a magistrate. See Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Probable cause, reflected in a grand jury’s indictment, justifies holding a defendant in custody pending trial. See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Probable cause also can justify the seizure of the suspect’s assets pending forfeiture, a step that may make it impossible for the suspect to hire his preferred lawyer and might lead to a conviction, when a better defense could have produced an acquittal. See Kaley v. United States, — U.S. -, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). All of these losses vastly exceed a $30 fee. If probable cause justifies months in jail and an inferior lawyer, what sense could it make to say that a $30 fee is constitutionally excessive? True, someone arrested on probable cause does- not get the $30 back if he prevails at trial — but neither does he get back the value of time spent in jail or the value of the difference between a top-notch lawyer and the average quality provided under the Criminal Justice Act. It won’t suffice to say, as Judge Hamilton’s dissent does, that probable cause isn’t enough to justify permanent deprivations of property. It does justify deprivations of liberty; why is property more sacrosanct? The Due Process Clause applies to both liberty and property. When there is a distinction, property receives the lesser protection. The burden at a criminal trial, where liberty is at issue, is “beyond a reasonable doubt”; the burden at a civil trial involving property, by contrast, is “preponderance of the evidence.” In a criminal trial that can end in a sentence of imprisonment, the defendant is entitled to counsel at public expense if he cannot afford a lawyer; in a civil trial, by contrast, a defendant who cannot afford a lawyer must represent himself. The list could be extended, but the point has been made. Liberty receives the greater protection. So the cases establishing that probable cause suffices to deprive a person of liberty for months pending trial show that there can’t be a problem with a $30 fee. More than that. I do not think that the Due Process Clause has anything helpful to say about the claim Markadonatos presents. The Constitution requires due process, yet for reasons the panel explains (and Judge Sykes reiterates) Markadona-tos’s demand for a hearing is unavailing. He might have been entitled to a hearing (or some other informal process, see Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)) adequate to separate persons arrested with probable cause from persons arrested without, but he has never asked for that sort of procedure. He maintains, instead, that the ordinance imposes a fee on every arrest, making probable cause irrelevant. Yet he concedes that he was arrested. On his own view of the ordinance, there is nothing to hold a hearing about. Instead his principal argument comes under the banner of “substantive due process.” The Supreme Court has concluded that substantive due process is applicable only when the government deprives a person of a “fundamental” right. See Washington v. Glucksberg, 521 U.S. 702, 719-23, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Glucksberg held that assisted suicide is not a fundamental right. Markadonatos does not contend that the loss of $30 is more important than the power to choose the time and manner of one’s death — or any of the other asserted rights that the Supreme Court has held not to be “fundamental.” He argues instead that there is a “fundamental right” not to be deprived of anything “arbitrarily,” and he maintains that the $30 fee is “arbitrary.” That is not an application of the Glucks-berg framework; it elides the need to find a “fundamental right.” If Markadonatos were correct, a court would never ask whether the asserted interest is “fundamental.” Instead it would go straight to the question whether the state has acted “arbitrarily,” which is to say, would decide every claim on the merits. Glucksberg requires, however, an initial step: ascertaining whether the interest at stake is “fundamental.” No decision of the Supreme Court so much as hints that a small fee is a “fundamental interest.” Maintaining the difference between “fundamental” and other interests is vital, lest we collapse the distinction between substantive due process and equal protection. The equal-protection question is whether it is possible to imagine a rational basis for the rule. See, e.g., Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (describing the rational-basis standard and applying it to a statute that imposed costs far exceeding $30). Markadonatos does not contend that the ordinance lacks a rational basis. Arrests may be followed by release without charge, release on bail, or incarceration. Any of these costs the Village at least $30 — or so a rational legislature could conclude. Both release without charge and release on bail entail lots of paperwork and the time of police officers, if not judges and lawyers; incarceration is costly because prisoners must be fed, supervised, and provided with medical care. Requiring people to reimburse others for the costs they impose on them is proper. (Recall that Markadonatos was arrested on probable cause, which means that his own misconduct caused whatever costs the Village incurred.) Markadonatos has invoked substantive due process in the hope that we will demand more than a rational basis from the Village. We should not oblige. Glucks-berg separates the domains of equal protection and substantive due process; this controversy is on the equal protection side. If there is something wrong with a fee of $30 for being arrested, what are we to make of the $400 fee for filing a suit in federal district court? If the arrest was without probable cause, the victim is entitled to damages. A prevailing party will recover costs, including the filing fee, from the defendant, but if the court holds that the arrest was supported by probable cause, then the suspect is out not only the $30 for being arrested but also the $400 for trying to show that he should not have been arrested. It would be absurd to say that the $30 fee violates the Constitution but that the $400 fee does not. And an assertion that a suspect incurs the $400 fee voluntarily by filing suit is hollow: the controversy begins not with the suit but with the arrést, which is involuntary from the perspective of Markadonatos or any other suspect. The only way to contest the arrest (or for that matter the arrest fee) is to pay a $400 filing fee in federal court. Probable cause for the arrest means that a plaintiff such as Markadona-tos does not get the $400 back. If probable cause for arrest supports a $400 fee, why not a $30 fee? Or consider the fee a village imposes to recover a towed car. These fees often are in the range of $100. No one wants his car towed any more than he wants to be arrested. And cars may be towed without good cause, just as people may be arrested without good cause. It seems more likely that a village would impose a steep towing fee as a means of generating revenue (which would increase the incentive to tow even properly parked cars) than that it would impose a modest arrest fee. Yet at oral argument counsel for Markadonatos acknowledged that a towing fee is valid. What he could not explain is why the Constitution allows a $100 fee after a car is taken to the pound but no fee at all after a person is taken to the stationhouse. I conclude that Markadonatos has standing to challenge the collection of a fee from a person arrested on probable cause, because that’s the category he is in and if he wins he gets the $30 back. But his argument fails on the merits. I therefore concur in the judgment.
SYKES, Circuit Judge, dissenting. 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 548-52 (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 566-68 (Hamilton, J., dissenting), with Markadonatos v. Vil lage 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 plaintiffs 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 552-53 (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 553-55. 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. * # * As the case was originally presented to the panel, the plaintiff raised a vaguely conceptualized due-process challenge to Woodridge’s booking fee — a $30 fee the Village collects from everyone who is arrested and booked at its jail. Never mind the hazy briefing, just describing this fee is enough to trigger alarm and indignation. Can a municipality really charge a fee simply for being arrested and booked at its jail? Really? Maybe not, but the panel majority concluded that the plaintiff lacks standing on the key “substantive” aspect of his due-process claim — his argument that it’s irrational to impose the fee on those who are wrongly arrested — because he was lawfully arrested on probable cause. See Markadonatos, 739 F.3d at 988-89 (majority op.); id. at 992-93 (Sykes, J., concurring). That remains my view. And I’m now convinced that the plaintiff lacks standing on the “procedural” aspect of his claim as well. The booking fee is listed in the Wood-ridge Village Code as a line item in an otherwise unremarkable schedule of administrative fees. In its entirety, the ordinance reads as follows: Booking fee: When posting bail or bond on any legal process, civil or criminal, or any custodial arrest including warrant. $30.00 WoodRidge, Ill., Code § 5-1-12A (2013), repealed by Ordinance of Mar. 13, 2014, Ord. No.2014-11. The terse language is not unusual given its placement in a schedule of administrative fees promulgated by a small municipality. Jerry Markadonatos was arrested for shoplifting and taken to the Woodridge jail. During the booking process, he was given written notice of the $30 booking fee, and he paid it immediately, before bonding out of jail. He was thereafter charged in DuPage County Circuit Court with retail theft, a state misdemeanor offense. He pleaded guilty as charged, was found guilty, and was sentenced to a 12-month term of supervision and ordered to pay various court costs and criminal justice fees. As Judge Posner notes, the parties dispute the legal significance of the term of supervision, which apparently was imposed under a pretrial diversionary program that permits the court to dismiss the case upon the defendant’s successful completion of supervision. See 730 III. Comp. Stats. 5/5-6 — 1(c), 5/5-6-3.1(e), 5/5-6-3.1(f). The dispute is immaterial. What matters here is that Markadonatos was arrested on probable cause, was charged with retail theft, pleaded guilty, and served a term of supervision for that crime. Everyone agrees on these facts. While he was still on court supervision, Markadonatos sued the Village under 42 U.S.C. § 1983, accusing it of violating his right to procedural and substantive due process by collecting the booking fee without a hearing at which he could contest it. He sought the full range of remedies for the claimed constitutional violation: a declaration that the booking-fee ordinance is unconstitutional, an injunction enjoining Woodridge from enforcing it, and damages. He brought the suit on behalf of himself and a class of “[a]ll individuals who were deprived of their property pursuant to Woodridge Municipal Ordinance 5-1-12(A) without being provided the constitutionally guaranteed due process of law.” The district court dismissed the case on the pleadings. In his initial brief on appeal, Markado-natos conflated the procedural and substantive aspects of his due-process claim. He argued that the fee is procedurally unconstitutional because the Village collects it during the booking process without a predeprivation hearing to test the validity of the arrest or at least a postdeprivation process by which those who are wrongfully arrested, never charged, or are found not guilty may obtain a refund. This way of framing the procedural challenge requires a prior conclusion about the substance of the ordinance. By its terms, the ordinance does not make the fee contingent on a valid arrest or successful prosecution. To resolve the argument about inadequate process, the court would first have to conclude that the booking fee is substantively unconstitutional as applied to people who are wrongfully arrested, never charged, or are found not guilty. But Markadonatos isn’t in any of those groups. He concedes that he was lawfully arrested on probable cause, was in fact charged with retail theft, and pleaded guilty as charged. So the panel majority concluded that Markadonatos lacked standing to challenge the fee as a violation of substantive due process and proceeded to analyze the procedural due-process claim without the embedded substantive premise, rejecting it under the balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Markadonatos, 739 F.3d at 988-91; id. at 992-93 (Sykes, J., concurring). Judge Hamilton dissented, construing the booking fee as “in substance a criminal fine,” id. at 993 (Hamilton, J., dissenting), which of course cannot be imposed without an adjudication of guilt, id. at 994-99. Markadonatos then obtained new counsel and sought rehearing en banc. The court granted rehearing and ordered the parties to submit new briefs on (among other things) the question of standing and the fee/fine distinction raised in Judge Hamilton’s dissent. In this new round of briefing, Woodridge pressed harder on the standing problem, and the parties agreed that the booking fee is indeed a fee, not a fine. Meanwhile, the Village quietly repealed the booking fee. No one bothered to tell the court about this important development, perhaps because the claim for damages remains. But the repeal moots the claim for injunctive relief. Now, in yet another twist, three members of the court propose to resolve the sole remaining live claim on a new ground never raised by the parties. Invoking the doctrine of constitutional avoidance, my colleagues interpret the ordinance as a fee for bonding out of jail. See ante, at 548-52 (Posner, J., concurring in the judgment). Having thus “saved” the (now repealed) ordinance via a narrowing construction, they conclude that the Village committed no constitutional violation (because Marka-donatos bonded out of jail) and therefore reject the claim on the merits. Id. at 552. I certainly agree that the ordinance is not clearly drafted. And the proposed limiting construction may be a reasonable one. But throughout this litigation, the parties have agreed that Woodridge imposes the fee on all persons arrested and booked at its jail, regardless of whether they remain in custody, post bail, or bond out. Granted, there is some authority for invoking the doctrine of constitutional avoidance sua sponte. See, e.g., Escambia County v. McMillan, 466 U.S. 48, 51-52, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984); Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 158, 103 S.Ct. 2926, 77 L.Ed.2d 535 (1983); Youakim v. Miller, 425 U.S. 231, 234-36, 96 S.Ct. 1399, 47 L.Ed.2d 701 (1976); see also Adrian Vermeule, Saving Constructions, 15 GEO. L.J.1945, 1948-49 (1997) (discussing procedural avoidance and collecting cases). But that approach is not open to us here for the reasons Judge Hamilton explains at length in his dissent, see post, at 565-66 (Hamilton, J., dissenting), and Judge Easterbrook also mentions in his concurrence, see ante, at 552-53 (Easterbrook, J., concurring in the judgment). I agree with them on this point and have nothing to add. It’s worth reiterating, however, that the claim for injunctive relief is moot. A “saving” construction is a remedial device to avoid striking a statute as unconstitutional, but here the challenged ordinance is no longer on the books. A limiting construction can’t be applied retrospectively and used as a basis to reject a claim for damages — at least not where, as here, the parties agree that the statute was uniformly interpreted and applied more broadly. On closer review I’ve concluded that Markadonatos lacks standing on both the substantive and procedural aspects of his due-process claim. This is, of course, a jurisdictional inquiry that must precede consideration of the merits. See Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also U.S. Const, art. III, § 1. The familiar requirements of Article III standing are these: (1) the plaintiff must have suffered a concrete “injury in fact”; (2) the injury must be fairly traceable to the defendant’s allegedly unlawful conduct; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lu-jan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal quotation marks omitted). There’s no doubt that the first requirement is satisfied here. Markadonatos paid the $30 booking fee. The problem arises at step two of the standing inquiry. As Markadonatos has framed his constitutional claim — in both its procedural and substantive aspects — his injury is not fairly traceable to the Village’s allegedly unconstitutional conduct. Although his arguments have evolved during the course of this appeal, at this point Markadonatos offers three basic reasons why the booking-fee ordinance is unconstitutional: (1) the fee is collected without a predeprivation hearing or a postdeprivation process to obtain a refund; (2) the fee is arbitrary and irrational as applied to those who are unlawfully arrested; and (3) the fee is arbitrary and irrational as applied to those who are never charged or are found not guilty. The first is an argument about procedure; the other two address the substantive terms of the ordinance. Because Markadonatos concedes probable cause to arrest and in fact admitted his guilt in court, he can’t press an argument that the fee is irrational as applied to innocent or wrongfully arrested people. See Sickles v. Campbell County, 501 F.3d 726, 732 (6th Cir.2007) (holding that plaintiffs who pleaded guilty lack standing to challenge the county’s collection of jail costs as applied to those who are “arrested, booked and immediately released because of mistake”) (internal quotation marks omitted); ante, at 552-53 (Easter-brook, J., concurring in judgment). So the substantive component of the due-process claim drops out of the case because the plaintiff lacks standing to challenge the fee on this basis. The remaining argument about defective process also relies on a claim about substantive flaws in the ordinance, which affects the analysis of the plaintiffs standing to challenge the fee on procedural due-process grounds. As I’ve explained, Mar-kadonatos’s claim about deprivation of process rests on a premise that the fee cannot be imposed without a predeprivation hearing to test the validity of the arrest, or alternatively, that the Village must at least provide some postdeprivation procedure so that those who are wrongfully arrested, never charged, or found not guilty may obtain a refund. Again, this argument ties the procedural due-process claim to a conclusion about the substantive constitutionality of the ordinance. Restated, the argument is essentially this: Because the fee is not rational as applied to those who are wrongfully arrested, never charged, or found not guilty, a hearing is necessary to prevent its erroneous application to people in these groups. But Markadonatos doesn’t challenge the validity of his arrest and has admitted his guilt in court. That is, he does not contest any facts that would be relevant to the hearing that he claims the Constitution requires. As such, he has suffered no harm that is fairly traceable to the alleged deprivation of process about which he complains. The standing problem in this case straddles Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), and Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), two cases that were decided a year apart but seem to point in opposite directions. In Codd the Supreme Court held that a person cannot make a procedural due-process claim when he does not assert that a factual dispute exists for a due-process hearing to resolve. The case involved a police officer who lost his job during the probationary phase of his employment. 429 U.S. at 624-25, 97 S.Ct. 882. His personnel file contained a report that he had attempted suicide, which he claimed hurt his job prospects at other law-enforcement agencies. Id. at 626, 97 S.Ct. 882. Although as a probationary employee he did not have a property interest in his job, he claimed that the stigmatizing nature of the report about his suicide attempt entitled him to a hearing. Id. The Court granted certiorari to determine whether the case came within the doctrine established in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). In the end, however, the Court found it unnecessary to decide this question because the officer had not asserted that the report of his suicide attempt was false. Codd, 429 U.S. at 627, 97 S.Ct. 882. The Court held that “if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation.” Id. The officer had claimed a right to a hearing to “clear his name.” Id. The Court concluded that because “he does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result for him.” Id. at 627-28, 97 S.Ct. 882. In Carey, decided the following year, the Supreme Court held that a violation of procedural due process is actionable without proof of actual damages. 435 U.S. at 266-67, 98 S.Ct. 1042. Elementary and secondary school students sought damages for deprivation of their due-process rights after they were suspended without a hearing for violating school rules. The Court held that the students were not required to prove actual damages: “Even if [the] suspensions were justified, and even if they did not suffer any actual injury, the fact, remains that they were deprived of their right to procedural due process.” Id. at 266, 98 S.Ct. 1042. The Court remanded the ease with specific instructions to the district court: If the court concluded that the suspensions were valid under school rules, the claim for compensatory damages would fail, but the students were nonetheless entitled to “nominal damages not to exceed one dollar” for the deprivation of process. Id. at 267, 98 S.Ct. 1042. The results in Codd and Carey seem contradictory, but the Tenth Circuit persuasively explained the difference between the two cases in Rector v. City & County of Denver, 348 F.3d 935, 944 (10th Cir.2003). Rector involved a challenge to the parking-enforcement regime in the City of Denver. The City’s standard parking ticket form notified the recipient that the parking fine must be paid or contested within 20 days and also warned that if payment was not received within that 20-day period, certain late fees automatically applied. Id. at 937-38. The plaintiffs— two people who were ticketed for parking violations and paid the fines — sued the City claiming that the late-fee notice was misleading because in actuality, “as long as the recipient appears before the parking referee within twenty days, the late fee is not imposed.” Id. at 942. They complained that the “categorical” language on the face of the ticket “pressures recipients to pay rather than challenge the ticket” and thus violates due process because it “restricts a putative violator’s opportunity to be heard and to present objections.” Id. But the plaintiffs in Rector did not assert any basis on which they would have contested their tickets. This cast significant doubt on their standing to sue for interference with their procedural rights. Reconciling Codd and Carey, the court extrapolated an important standing principle in procedural due-process cases: The distinction between Codd and Carey lies in adopting an ex ante perspective on the right to due process hearings. The Carey plaintiffs denied the substance of the underlying allegations made against them. Their injury, viewed ex ante, is that they were denied the opportunity to convince school administrators that they should not be suspended. Thus while ex post, their loss on the merits precluded any claim for compensatory damages, the denial of the opportunity to sway school officials toward their cause constituted an injury in fact. By contrast, the plaintiff in Codd did not challenge the substantial truth of the damaging material set forth in his file. Even by his own reckoning of the facts, the hearing would not have vindicated any rights. Rector, 348 F.3d at 944 (internal citations omitted). The Rector plaintiffs were more like the police officer in Codd than the students in Carey. They did not assert any grounds on which they would have contested their parking tickets. So the Tenth Circuit concluded that they lacked standing to claim a violation of their hearing rights. Their injuries — payment of the parking fines— were not fairly traceable to the alleged defect in the notice; their hearing rights were unaffected “because there was nothing for a hearing to decide.” Id. at 945. As Rector explains, under Carey a person claiming a violation of procedural rights may have an injury in fact regardless of whether he would have prevailed at the hearing that is the subject of his claim. “Parties may suffer injury in fact from defective procedures even if, at the end of the day, they would not have prevailed on the merits.” Id. at 943; see also Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir.1994) (noting that a “denial of procedural rights is a form of injury”). But the standing inquiry does not end with a finding of injury in fact. Codd shows that in a due-process case, the plaintiff must also allege that he would have challenged something at the hearing that he contends is constitutionally required. See Rector, 348 F.3d at 944 (citing Michael H. v. Gerald D., 491 U.S. 110, 127 n. 5, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion) (“We cannot grasp the concept of a ‘right to a hearing’ on the part of a person who claims no substantive entitlement that the hearing will assertedly vindicate.”)). Otherwise his injury is not “fairly traceable” to the alleged deprivation of process. Here, Markadonatos does not wish to contest any facts that would be relevant to the hearing he claims is constitutionally required; he concedes that he was lawfully arrested for retail theft and admitted his guilt in court. Accordingly, his injury is not fairly traceable to the alleged constitutional violation on which his claim rests. Judge Posner does not directly address the plaintiffs standing, but the issue can’t be skipped over or summarily brushed aside. See DaimlerChrysler Corp., 547 U.S. at 341, 126 S.Ct. 1854 (“If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.”). In his concurrence Judge Easterbrook writes that Markadonatos has standing to raise a substantive challenge to the ordinance, but only to the extent that he “maintains ... that the fee is constitutionally obnoxious even when the arrest is supported by probable cause and followed by a conviction.” See ante, at 553 (Easter-brook, J., concurring in the judgment). But Markadonatos hasn’t advanced a claim that municipalities are constitutionally forbidden to assess a booking fee on people in this category. He has never argued that booking fees are arbitrary and irrational in all circumstances, quite apart from the processes used to collect them. Rather, the “substa