For the past several months I’ve been kind of perplexed by a due process case pending in the 7th Circuit. The case was argued en banc last month, and it presents a question posing a tricky mix of substantive and procedural due process — is it constitutional for a city to impose a $30 fee on everybody who is arrested and booked at the police station, at the time of booking?

It appears that the case has perplexed the 7th Circuit as well. The Court announced yesterday that it was divided and unable to reach a majority opinion, or even a majority vote:

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 (1868).

You can read the various opinions here. You can read the original panel opinion here (with a concurring opinion by Judge Sykes and a dissenting opinion by Judge Hamilton). The district court had upheld the fee.

The merits of the due process question are covered in the opinions by Judge Easterbrook and Judge Hamilton. Judge Easterbrook argues that a $30 booking fee is indistinguishable from a $100 car-impound fee, which was conceded to be okay. Judge Hamilton argues that the booking fee is indistinguishable from a traffic-stop fee, or an executing-a-search-warrant-on-your-house fee, which he says can’t be squared with the rule of law. I continue to be of two minds about the case, and I think I agree with Judge Hamilton that current thinking about how to distinguish substantive and procedural due process is confused in an area like this, even if I’m not sure how I’d taxonomize all of these fees.

But apart from the merits of the due process issue, the opinions also introduce some fascinating procedural questions. Judge Posner claims that the merits can be avoided by construing the statute to be about bond. (The village rejected this construction, even when it was repeatedly urged by Judge Posner at oral argument.) Judge Hamilton argues that the canon of constitutional avoidance doesn’t make sense when a plaintiff seeks damages for past wrongdoing under a city policy — even if the statute could be saved going forward — a court can’t construe a past injury not to have happened in the first place. Meanwhile, Judge Easterbrook argues that the canon of constitutional avoidance — at least in its strong form — doesn’t apply to state statutes. The various opinions also fight about standing.

One odd feature of all of this is the importance of sequencing multiple questions. Had the court been forced to resolve two questions separately, 1, what does the statute mean?, and 2, is it unconstitutional?, it would have struck down the statute. I can’t really figure out what would have happened if the standing question had been sequenced, but the court also might well have been able to reach a decision. But because all of the questions were blended together, there isn’t even a majority judgment for a single judgment, let alone an opinion.