Federal appellate courts ordinarily grant en banc hearings or rehearings only when “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a).  So, what happens when an en banc hearing produces no uniformity, or fails to decide anything at all?

In 2012, we noted that an evenly divided Seventh Circuit (actually split 4-1-5) had left the circuit’s pleading standard for class-of-one equal-protection claims up in the air after a failed en banc attempt at resolution. Earlier this week—with a seat on the court still vacant—the Seventh Circuit’s 10 active judges again affirmed by a divided court, in Markadonatos v. Village of Woodridge, No. 12-2619. This time, the court fractured 3-2-1-4. Judge Diane Sykes summarized, explaining that “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.”

Markadonatos was arrested for shoplifting and paid the municipality’s $30 “Arrest/Booking Fee” during booking. He then posted a $150 bond, pleaded guilty, underwent a year of court supervision, and paid his fines.  While still under supervision, he filed a putative class action, suing the village under 42 U.S.C. § 1983 for violating the constitutional guarantees of procedural and substantive due process by imposing the booking fee on all arrestees. His complaint was dismissed on the pleadings, and a divided panel of the Seventh Circuit affirmed.  (Judge J.P. Stadtmueller of the Eastern District of Wisconsin, sitting by designation, wrote the panel opinion but was ineligible to sit on the rehearing en banc.)

After rehearing en banc, Judge Richard Posner, in a three-judge lead opinion (slip op. at 2), expressed grave doubt that a true “booking” or “arrest” fee for all those arrested could be constitutional (“Being arrested is not a ‘service’ to the person arrested!”). Yet he found that, since the ordinance could be read as imposing a fee only on those electing to post bail or bond, constitutional avoidance required adopting this interpretation (even though it had been repealed, and even though the village did not argue for the interpretation or the avoidance). Judge Easterbrook (with Judge Tinder), in a concurrence (id. at 17), believed Markadonatos had standing for one of his claims only as to fees on persons arrested with probable cause (like himself), but that claim failed on the merits. Judge Sykes, in a “dissent” (id. at 23), argued that the plaintiff had no standing for any of his claims because he admitted probable cause for his arrest (and his guilt), and therefore could not press any of his claims.

The remaining four judges, led by Judge David Hamilton (id. at 38), emphasized their points of agreement with Judge Posner but criticized his decision to use constitutional avoidance in order to ignore that “the village has said over and over that it in fact imposed the arrest fee on everyone who was arrested simply because they were arrested.” The fee, the dissent wrote, was a “plainly unconstitutional fee for the privilege of or ‘service’ of being arrested.”

Faced with the prospect of the en banc “vote” leading to nothing but a fractured affirmance, Judge Hamilton went out of his way to list the case’s “silver linings.” In particular, he noted that“[a] majority of [the] court signals clearly that any similar arrest fee is likely to fail a future due process challenge” and that a majority had found standing. “I hope,” he said, “these signals will discourage the Village of Woodridge and any other governments from adopting a new arrest fee or policy and risking similar litigation and a fee award under 42 U.S.C. § 1988.”

Judge Hamilton also cued readers to a law-journal comment discussing cross-cutting majorities in fractured decisions that focuses on the “prediction model of precedent.” Holmes’s Path of the Law provided that model’s most famed description: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” So, though the “fractured nondecision” is nonprecedential (see slip op. at 24 n.1), if a majority agrees that true booking fees are unconstitutional, the case will act like something closer to binding law.