Washington, T., Aplt. v. PA Dept. of Corrections

Opinion

[J-32-2023] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

THOMAS WASHINGTON, : No. 13 MAP 2022 : Appellant : Appeal from the Order of the : Commonwealth Court at No. 485 MD : 2020 dated December 30, 2021 v. : : ARGUED: May 24, 2023 : THE PA DEPARTMENT OF : CORRECTIONS, : : Appellee :

Justice Donohue delivers the Opinion of the Court but for Section III.B.1.b and the final paragraph of footnote 53.

OPINION

JUSTICE DONOHUE DECIDED: December 19, 2023 “The heart of the matter is that democracy implies respect for the elementary

rights of men, however suspect or unworthy; a democratic government must therefore

practice fairness; and fairness can rarely be obtained by secret, one-sided

determination of facts decisive of rights.” Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J., concurring). Appellant, Thomas

Washington (“Washington”), an inmate at the State Correctional Institution (“SCI”) at

Houtzdale, has spent the better part of the last two decades on probation or

incarcerated for serious criminal offenses. He works in the prison for a fraction of the

minimum wage and occasionally receives gifts from friends and family, both serving to supplement the meager necessities provided by the institution that controls virtually

every other aspect of his life. Those wages and gifts were garnished pursuant to Act

841 at a rate of 20% to pay for Washington’s court-ordered financial obligations

associated with his criminal conviction until 2020 when, without prior notice or an

opportunity to be heard, the deduction rate was suddenly increased to 25%.

The government may be entitled to the additional five percent of Washington’s

property, but that is not the question before us. Today we are concerned with the

manner of the taking, because a democratic government must practice fairness to be

worthy of its name, and procedural due process must be afforded to both heroes and

villains with equal vigor when state action infringes on a fundamental right.2 Today, this

Court reaffirms that principle by holding that Pennsylvania’s Department of Corrections

(“the DOC” or “the Department”) violated Washington’s procedural due process rights

when it increased the rate of his Act 84 deductions without pre-deprivation notice and

an opportunity to be heard. Thus, we reverse the Commonwealth Court’s order

sustaining the DOC’s preliminary objections and remand for further proceedings

consistent with this opinion.

1 See Act of June 18, 1998, P.L. 640, No. 84, which, as relevant to this appeal, amended 42 Pa.C.S. § 9728 (“Collection of restitution, reparation, fees, costs, fines and penalties”). 2 “The very essence of civil liberty certainly consists in the right of every individual to

claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. 137, 163 (1803).

[J-32-2023] - 2 I. Background

In 2015, Washington entered a nolo contendere plea to charges of aggravated

assault and person not to possess a firearm,3 after which the trial court immediately

sentenced him to five to ten years of incarceration pursuant to a plea agreement. The

court ordered Washington to pay the costs associated with his prosecution, N.T.,

3/9/2015, at 19, and restitution totaling $15,666.49, Restitution Order, 4/8/2015, at 1.4

Since that time, Washington has been serving his sentence at SCI Houtzdale.

Until January of 2020, deposits to Washington’s prisoner account at SCI

Houtzdale were docked by the DOC at a rate of 20% pursuant to Act 84, but he later

discovered that the Act 84 deduction rate increased to 25%. When he discovered the

increase had been applied, Washington filed an official grievance form with the DOC.

CD-804 Grievance Form, 8/2/2020, at 1. Therein, he asserted that he was never

notified by the DOC of the increase, and he requested that any additional deductions

“cease until a proper hearing is afforded.” Id. On August 5, 2020, Washington’s

grievance was rejected.5

3 18 Pa.C.S. §§ 2702, 6105, respectively. Briefly, the facts supporting Washington’s nolo contendere plea to these offenses establish that Washington engaged in a high- speed vehicle chase, which ended when he rammed his car into a police vehicle. N.T., 3/9/2015, at 11. During the on-foot pursuit that followed, Washington dropped a loaded firearm shortly before he was ultimately arrested by police. Id. at 11-12. 4 Although Washington still owed a substantial portion of the restitution when the instant litigation began, the trial court’s docket indicates that the court subsequently vacated the restitution order on June 30, 2022. Nevertheless, Washington remains obligated to pay the various costs and fees associated with the prosecution in that case, which initially totaled $1,385.55. 5 The grievance officer believed that Washington’s complaint was untimely, explaining in the rejection form that the rate change occurred on January 15, 2020. Grievance Rejection Form, 8/5/2020, at 1. The rejection form indicated that several previous deductions to Washington’s account at the 25% rate had occurred between January (continued…)

[J-32-2023] - 3 On August 25, 2020, Washington timely filed a petition for review in the

Commonwealth Court alleging that he was denied his procedural due process rights

under the Fourteenth Amendment when the DOC deducted Act 84 payments from his

prison-account deposits at the 25% rate absent notice and without holding a pre-

deprivation hearing. Pet. for Review, 8/25/2020, ¶¶ 4-5, 10. Washington asserted that

he was entitled to relief in the form of a post-deprivation hearing and requested

injunctive relief—the cessation of the additional deductions—until that hearing was

provided. Id. ¶ 10.6 The DOC filed preliminary objections in the nature of a demurrer,

maintaining that the deductions were authorized under Act 84 and that any procedural

due process concerns had been satisfied at the sentencing hearing. Prelim. Obj.,

9/21/2020, ¶¶ 7-10. Furthermore, the DOC argued that the newly-amended version of

Act 84 mandated a minimum deduction of 25%. Id., ¶¶ 14-15. Because Washington

(…continued) and August of 2020, and stated that the DOC’s policy required grievances to be raised within fifteen working days of the complained-of occurrence. Id. Thus, Washington’s grievance was ostensibly deemed untimely by the DOC because at least one of those 25% deductions had occurred more than fifteen working days prior to August 2, 2020. The rejection form did not specifically identify which prior deduction had triggered the fifteen-day time limitation on Washington’s grievance. The Commonwealth Court did not assert the untimeliness of his grievance as basis for granting the DOC’s preliminary objections, finding that a two-year statute of limitations applied. No party challenges that determination in this appeal. 6 Washington also raised other legal theories supporting his right to relief, most of which are not relevant to the current issues before this Court. However, we note that Washington also requested a hearing pursuant to Pa.R.Crim.P. 706, id. ¶ 9, which provides that in “cases in which the court has ordered payment of a fine or costs in installments, the defendant may request a rehearing on the payment schedule … when the defendant advises the court that such default is imminent.” Pa.R.Crim.P. 706(D). “At such hearing, the burden shall be on the defendant to prove that his or her financial condition has deteriorated to the extent that the defendant is without the means to meet the payment schedule.” Id. If a defendant meets that burden, the court is empowered to “extend … the payment schedule …as the court finds to be just and practicable under the circumstances of record.” Id.

[J-32-2023] - 4 did “not dispute that he was sentenced to pay . . . financial obligations associated with

his sentence, and the [DOC] has authority under Act 84 to deduct those costs,” the

DOC argued for dismissal of Washington’s petition for failure to state a claim. Id. ¶ 18.

In a non-precedential memorandum opinion filed on December 30, 2021, a

divided panel of the Commonwealth Court “sustained the demurrer[,]” reasoning that

because the DOC “lacks discretion to alter the amount of deductions” under the newly

amended version of Act 84, Washington failed to “state a constitutional claim[.]”

Washington v. PA Dep’t of Corr., No. 485 M.D. 2020, 2021 WL 6139806 at *1 (Pa.

Commw. Dec. 30, 2021) (non-precedential decision).

In reaching that conclusion, the court first considered its standard of review for

preliminary objections in the nature of demurrer7 and the leniency it affords to pro se

litigants, before turning to consider Act 84’s pre-amendment history. The lower court

acknowledged that in Bundy v. Wetzel, 184 A.3d 551, 556 (Pa. 2018), this Court

established that the DOC is subject to certain due process requirements when making

Act 84 deductions from prisoner accounts. Washington, 2021 WL 6139806 at *2.

Namely, applying the rationale of the Third Circuit in Montañez v. Secretary

Pennsylvania Department of Corrections, 773 F.3d 472 (3d Cir. 2014), we held in Bundy

that to satisfy the Due Process Clause in connection with Act 84 deductions, the DOC

must,

7 A demurrer challenges the legal sufficiency of a complaint. Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468 (Pa. 2006). That is, assuming the truth of the as-pled facts and any reasonable inferences derived therefrom, a demurrer tests whether the law permits recovery under the assumed facts. Id. If the law does not permit recovery, there is no need for a trial to test the credibility of the factual averments, and the demurrer should be granted. Id. However, where the availability of a remedy under the law is in doubt, a motion in the nature of demurrer should be denied. Id.

[J-32-2023] - 5 prior to the first deduction: (a) inform the inmate of the total amount of his financial liability as reflected in his sentencing order, as well as the Department’s policy concerning the rate at which funds will be deducted from his account and which funds are subject to deduction; and (b) give the inmate a reasonable opportunity to object to the application of the Department’s policy to his account. Bundy, 184 A.3d at 558–59.

The Commonwealth Court next considered our subsequent decision in Johnson

v. Wetzel, 238 A.3d 1172 (Pa. 2020), which largely reaffirmed our holding Bundy.

Washington, 2021 WL 6139806 at *3. From our decision in Johnson, the

Commonwealth Court ascertained that [t]o the extent the circumstances do not allow a pre- deprivation process, “a meaningful post-deprivation remedy satisfies due process.” Johnson, 238 A.3d at 1182 (quoting Bundy[], 184 A.3d at 557). As such, due process requires that the DOC, in response to an administrative grievance which accurately recites that no Bundy process was afforded prior to the first Act 84 deduction, must give the grievant notice of the items required by Bundy and a reasonable opportunity to explain why the past and/or intended deductions should not take place notwithstanding the dictates of Act 84. Id.

The Commonwealth Court acknowledged that it was undisputed in this case that

the DOC “did not provide notice of the increased deduction.” Id. Nevertheless, the

court distinguished Washington’s due process claim from those raised in Bundy and

Johnson because, prior to its recent amendment, “Act 84 did not specify a percentage

for deduction,” and instead “authoriz[ed the] DOC to make deductions and allow[ed the]

DOC to establish the amount.” Id. The DOC’s prior policy set a maximum deduction

rate of 20%, with the caveat that the DOC would only make Act 84 deductions from

inmate accounts with balances exceeding $10.00. Id. However, the newly-amended

version of Act 84 requires a minimum deduction of 25%.

[J-32-2023] - 6 The lower court then cited, but only briefly discussed, its prior decision in

Beavers v. Pennsylvania Department of Corrections, No. 486 M.D. 2020, 2021 WL

5832128 (Pa. Commw. filed Dec. 9, 2021). That decision was issued by the same three

judges who decided this case, and by the same two-to-one split,8 approximately three

weeks earlier. Beavers also involved an inmate’s procedural due process challenge to

the DOC’s implementation of the 2019 amendment to Act 84.9 The Beavers court

explained that when Act 84 was originally enacted, the legislature had “committed the

rate of the deduction to the discretion of the Department[,]” but the 2019 amendment

“set a minimum deduction rate of 25%.” Id. at *3. Beavers claimed that the DOC

“should have provided him” with notice and a hearing “prior to raising the deduction rate

from 20% to 25%.” Id. at *4.

The Beavers court disagreed, first, because Beavers was “presumed to know the

laws of this Commonwealth” and therefore had been adequately notified of the 25% rate

by the 2019 amendment itself. Id. Second, the court reasoned that the DOC satisfied

its obligations under Bundy because Beavers already had an Act 84 hearing before the

rate change. Id. To the extent that Bundy requires notice of the rate of deduction, the

Commonwealth Court determined that “the deduction rate will be an item in a Bundy

8 Beavers was authored by President Judge Emerita Mary Hannah Leavitt and joined by

Judge Andrew Crompton. Judge Patricia A. McCullough dissented. Washington was authored by Judge Crompton and joined by President Judge Emerita Leavitt. Judge McCullough dissented, relying on her dissenting opinion in Beavers. 9 In nearly identical circumstances to the instant case, Beavers asked the Commonwealth Court “to terminate the 5% increase in deductions until the Department affords him “a proper hearing[,]” and he also requested the return of “the amounts deducted from his account in excess of 20%.” Beavers, 2021 WL 5832128, at *1.

[J-32-2023] - 7 hearing” after the 2019 amendment “only where the Department exercises discretion to

impose a deduction rate higher than 25%.” Id. at *4 n.5.10

Third, the Beavers court addressed the other Bundy/Montanez notice

requirements, stating that the increase from 20% to 25% “did not change the total

amount of Beavers’ court-ordered fines and costs or change the account from which the

deductions are made.” Id. Fourth, the court found that because the legislature

mandated the 25% minimum rate that was applied to Beavers, the DOC “could not

order a lesser deduction percentage even if it gave Beavers the hearing he seeks.” Id.

Finally, the court determined that Beavers was not entitled to relief because “the

purpose of the pre-deduction hearing is to prevent erroneous deductions” and Beavers

did not allege “that there were any errors that a hearing might correct.” Id. Beavers did

not appeal from that decision.

In this case, the Commonwealth Court cited its prior decision Beavers, noting

that, facing similar claims, the Beavers court “reasoned that the increased deduction set

forth in the statute did not warrant additional notice or an opportunity to object.”

Washington, 2021 WL 6139806, at *4. It then stated, “[c]ritically, as recognized in

Beavers, the statutory language materially differs from that in effect when Bundy and

Johnson were decided” such that the “current statute does not afford DOC discretion

over setting the amount and effectuating the deduction” and, consequently, the “DOC

does not have the authority to exercise its discretion reasonably to discern whether the

amount it deducts requires additional due process through an administrative process.”

10 The Commonwealth Court determined that this is because “the rate of the deduction

was set by the legislature,” and as such “the concerns recognized by the Third Circuit in Montañez and our Supreme Court in Bundy . . . and its progeny are not present. Further, the notice prescribed in Bundy does not include notice of a change in Act 84.” Beavers, 2021 WL 5832128, at *4.

[J-32-2023] - 8 Id. (footnote omitted). Because the “statutory language materially differs from that in

effect when Bundy and Johnson were decided[,]” in that the “current statute does not

afford DOC discretion over setting the amount and effectuating the deduction[,]” the

Commonwealth Court determined that the DOC had “no duty” to provide notice of the

rate change. Id. at *4.

Judge McCullough dissented, citing the rationale she previously provided in her

dissent in Beavers. In Beavers, Judge McCullough would have determined that the

DOC’s implementation of the rate change precipitated by the amendment to Act 84

“runs afoul of Bundy.” Beavers, 2021 WL 5832128 at *7 (McCullough, J. dissenting).

Judge McCullough stated that [o]ur Supreme Court has made it unmistakably clear that due process requires the provision of notice to the inmate, prior to the first deduction, of “the rate at which funds will be deducted from his account.” Johnson, 238 A.3d at 1182; Bundy, 184 A.3d at 558. Even if one does not consider an increase in the rate to constitute a new “first” deduction for purposes of Bundy—which would be a reasonable conclusion—the ability to increase the rate of deduction without providing notice to the inmate would render this repeatedly stressed requirement absolutely meaningless. Id.

Judge McCullough also sparred with aspects of the Beavers majority’s

reasoning. First, she rejected the notion that Beavers had been adequately notified by

the publication of the amendment to Act 84, contending “that rationale flips the due

process burden on its head. It is the [DOC]’s obligation to provide notice of a property

deprivation; it is not an inmate’s burden to invite the [DOC] to meet its Bundy

obligations.” Id. Second, Judge McCullough would have found that Beavers’ pre-

amendment sentencing hearing was inadequate for purposes of permitting him to

challenge a post-rate change deduction under Act 84. Id. at *8. Third, Judge

[J-32-2023] - 9 McCullough also rejected the Beavers majority’s attempt to distinguish the at-issue rate

change with this Court’s decisions in Bundy and Johnson, stating that discretion in

imposing the deduction rate was immaterial because due process is triggered by the

deprivation of a property interest itself, not by the particular legal authority for the

deprivation, be it by “a statute, a regulation, a policy, or an ad hoc decision-making

process[.]” Id. Further, regarding the new mandate under Act 84, Judge McCullough

pointed out that the amendment had already been in place when this Court decided

Johnson, wherein this Court nonetheless mandated that inmates be provided with notice and an opportunity to object to the deductions—either pre- deprivation or post-deprivation—so that they could “explain why the past and/or intended deductions should not take place notwithstanding the dictates of Act 84.” Johnson, 238 A.3d at 1183 (emphasis added). Although the Department may not alter the statutory amount of 25%, its constitutional obligation to provide inmates with notice has not been eliminated or otherwise modified, and it still may make errors subject to correction. The due process mandated by Bundy and Johnson may allow for the development of a “meritorious challenge along these lines,” which “would then implicate the substantive remedy of restoring the prisoner’s wrongly-deducted funds to his or her account.” Id. Id. As to Beavers’ failure to assert any error in the deduction made from his account,

Judge McCullough stated that “this sidesteps the injury asserted” because the issue

before the Commonwealth Court was “the deprivation of due process, the provision of

which would allow for the potential development of an argument regarding such

errors[,]” the adjudication of which could occur after adequate process is provided. Id.

Judge McCullough concluded by suggesting that when the General Assembly

enacted the amendment to Act 84 in 2019, it was “fully aware of the due process

implications” of Bundy, which had been decided only a year earlier. Id. at *9 (citing 1

[J-32-2023] - 10 Pa.C.S. § 1922(4) (presuming that “when a court of last resort has construed the

language used in a statute, the General Assembly in subsequent statutes on the same

subject matter intends the same construction to be placed upon such language”)).

Consequently, Judge McCullough would have determined that the “only consequence of

that statutory amendment which should fall upon inmates is the mandated increase in

deductions from their accounts after they receive all of the process due under Bundy—

the consequence should not be that inmates’ due process rights are swept away

entirely.” Id.

Washington timely filed a notice of appeal,11 and now raises the following

questions for our review: 1. Whether the Commonwealth Court erred in holding that the [DOC’s] increase in the rate of deduction from inmate accounts to pay court ordered costs and restitution pursuant to 42 Pa.C.S. § 9728(b)(5)(i) could be applied to Mr. Washington without notice or an opportunity to be heard?

2. Whether the Commonwealth Court erred in holding that the [DOC] lacks discretion to alter the amount of the deduction under 42 Pa.C.S. § 9728(b)(5), notwithstanding that the deprivation of property triggers principles of due process? Washington’s Brief at 5.12

11 This Court has “exclusive jurisdiction” over “appeals from final orders of the Commonwealth Court entered in any matter which was originally commenced in the Commonwealth Court except an order entered in a matter which constitutes an appeal to the Commonwealth Court from another court, a magisterial district judge or another government unit.” 42 Pa.C.S. § 723(a). Such appeals are considered as of right. Pa.R.A.P. 1101. 12 For the reasons set forth below in our analysis, we address the second question as

subsidiary to the first.

[J-32-2023] - 11 II. Parties’ Arguments

A. Washington’s Argument

Washington maintains that to comply with due process, state actors “must

provide certain procedural safeguards . . . by which an individual can raise objections to

a deprivation of their constitutionally-protected property interests.” Washington’s Brief

at 12. He acknowledges that the degree of process that must be afforded is informed

by “a balancing of the interests at stake in a particular context[.]” Id. Nevertheless,

Washington argues that “the right to notice and a meaningful opportunity to be heard”

constitute the minimum due process requirements in all circumstances where the state

acts to deprive an individual of life, liberty, or property. Id. (quoting LaChance v.

Erickson, 522 U.S. 262, 266 (1998) (“The core of due process is the right to notice and

a meaningful opportunity to be heard.”)). He states that these principles indisputably

apply here because, at least since Buck v. Beard, 879 A.2d 157, 160 (Pa. 2005), this

Court has consistently held that incarcerated individuals hold a “constitutionally

protected interest in the funds in their inmate accounts” such that due process is

implicated when the DOC extracts funds from those accounts. Id.

Washington traces the subsequent development of due process jurisprudence

with respect to monies deducted from prisoner accounts under the authority of Act 84.

In Montañez, the Third Circuit held that inmates are entitled to pre-deprivation process

when the DOC appropriates funds from inmate accounts pursuant to Act 84. Id. at 13

(citing Montañez, 733 F.3d at 483). Elaborating, the Montañez court also identified

particular “categories of information to which due process must apply[.]” Id. at 14. The

Montañez court specified that, before the first deduction, notice must be provided to

inmates of 1) the inmate total debt, 2) the rate at which funds will be deducted to satisfy

that debt, and 3) which funds are subject to garnishment. Id. (citing Montañez, 733 F.3d

[J-32-2023] - 12 at 486) (hereinafter “Montañez’s notice requirements”). In addition, the Third Circuit

determined that inmates must be afforded a “meaningful opportunity to object to the

application of” the DOC’s Act 84 policy before the first deduction is taken. Id. (quoting

Montañez, 733 F.3d at 486).

Washington observes that this Court “embraced” the Montañez decision in

Bundy, and that we further expressed a preference for pre-deprivation process in

service of error avoidance. Id. However, he highlights our caveat that “where pre-

deprivation notice and hearing ‘is not feasible, . . . the availability of a meaningful post-

deprivation remedy satisfies due process.’” Id. (quoting Bundy, 184 A.3d at 557).

Washington also points out that in Bundy we reiterated that to comply with due process,

notice in the context of Act 84 must include Montañez’s notice requirements. Id. at 14-

15.

Washington next recounts that, soon after Bundy, this Court revisited Act 84 in

Johnson and reaffirmed that due process principles require “notice of certain items and

a reasonable opportunity to object before the first Act 84 deduction is made.” Id. at 15,

(quoting Johnson, 238 A.3d at 1182). He asserts the Johnson Court “squarely held that

post-deprivation process must be given ‘to inmates whose accounts were subject to Act

84 deductions without the benefit of pre-deprivation safeguards.’” Id. 15-16 (quoting

Johnson, 238 A.3d at 1182-83).

Synthesizing these cases, Washington avers the due process mandates that follow from these decisions are plain enough. Where an incarcerated person shows “that no Bundy process was afforded prior to the first Act 84 deduction,” the DOC “must give the grievant notice of the items required by Bundy and a reasonable opportunity to explain why the past and/or intended deductions should not take place notwithstanding the dictates of Act 84.” [Johnson, 238 A.3d] at 1183. And if the incarcerated person’s challenge is “meritorious,” he or she is entitled to “the

[J-32-2023] - 13 substantive remedy of restoring the prisoner’s wrongly- deducted funds to his or her account.” Id. So it should be for Mr. Washington as well. Id. at 16.

Given the above legal framework, Washington contends that, in this case, 1) it is

undisputed that he has a constitutionally-protected property interest in the money in his

inmate account; 2) as such, he was entitled to Montañez’s notice requirements as

established in Bundy, including notice of the rate at which funds will be deducted from

his account pursuant to Act 84; and, thus, 3) he was entitled to an opportunity to explain

why deductions at the new 25% rate should not occur “notwithstanding the dictates of

Act 84.” Id. at 16-17 (quoting Johnson, 238 A.3d at 1183). Because no such pre-

deprivation was provided, Washington argues that “due process principles mandated a

post-deprivation opportunity to object to the rate increase.” Id. at 17. Consequently, he

maintains that the Commonwealth Court erred in concluding otherwise. Id.

Washington also insists that the Commonwealth Court’s rationale is

unsustainable. He rejects the notion that the mandatory nature of the amended version

of Act 84 renders Bundy and Johnson inapplicable under the facts of this case, arguing

instead that due process “is owed when the Constitution commands it.” Id. at 19. Thus,

according to Washington, notice and an opportunity to be heard are mandated

regardless of whether the legislature crafts a mandatory or discretionary garnishment

scheme under Act 84. He argues that failure to provide notice is itself a constitutional

violation that requires a remedy, and that, even though a pre-deprivation hearing was

not provided, the Commonwealth Court should have ordered a post-deprivation hearing

to remedy the procedural due process violation that occurred.

As to the Commonwealth Court’s belief that Washington “would have no

actionable challenge in a hearing based on the 25% rate being” mandatory, he argues

[J-32-2023] - 14 that the court “veered off course” because this Court held in Johnson that due process

requires a reasonable opportunity to explain why the Act 84 deduction should not occur

“notwithstanding the dictates of Act 84.” Id. at 20 (quoting Johnson, 238 A.3d at

1183) (emphasis by Washington). For instance, Washington maintains that due

process “guarantees a right to explain why past or future deductions at the 25% rate

should not be imposed because of the hardships it would occasion.” Id. at 21.

Washington contends that when hardships can be demonstrated, “a court has

the power to provide relief from the deprivation in line with constitutional commands,

citing this Court’s statement in League of Women Voters v. Commonwealth, 178 A.3d

737, 822 (Pa. 2018), that “our Court possesses broad authority to craft meaningful

remedies when required.” Id. He endorses Judge McCullough’s suggestion that a

meritorious challenge could lead to the restoration of the seized funds to Washington’s

account. Id. (citing Beavers, 2021 WL 5832128 at *8 (McCullough, J., dissenting)).

Courts do not merely have the power to craft appropriate remedies for due process

violations, Washington suggests, but the obligation to do so. Id. (citing Robinson Twp.

v. Commonwealth, 83 A.3d 901, 969 (Pa. 2013) (stating “this Court has an obligation to

vindicate the rights of its citizens where the circumstances require it and in accordance

with the plain language of the Constitution”).13 Furthermore, Washington contends that

the 2019 amendment to Act 84 cannot be read to be a legislative attempt to deprive

prisoners of their due process rights, as Bundy was issued before the amendment, and

13 As to the notion that a remedy might not always be available for some due process

violations, Washington invokes the ancient principle ubi jus, ibi remedium (where there is a right, there is a remedy), which this Court recently cited in Commonwealth v. Koehler, 229 A.3d 915, 933 (Pa. 2020). Washington’s Brief at 21. In Koehler, we stated: “To strip the Due Process Clause of all remedies to address that clause’s violation is to eliminate the underlying right itself[,]” Koehler, 229 A.3d at 933, and, the “right to a remedy is, itself, a right protected by due process.” Id. n.10.

[J-32-2023] - 15 the “‘General Assembly is presumed to know the state of the law as set forth in the

decisions of this Court.’” Id. at 22 (quoting Commonwealth v. McClintic, 909 A.2d 1241,

1252 (Pa. 2006)).

Additionally, Washington argues that the text of the amendment “reinforces” the

legislature’s “acceptance of Bundy.” Id. He contends that by permitting the DOC to

“develop guidelines relating to its responsibilities” under Act 84, the legislature granted

the DOC discretion to deviate from the 25% mandate because the DOC bears the

responsibility to comply with Bundy’s due process requirements. Id. (quoting 42

Pa.C.S. § 9728(b)(5)(iv)). Washington observes the following: By the same token, nowhere in this statutory scheme is there any clear statement by the legislature evidencing an attempt to infringe on what Bundy commands, nor is there any basis to presume the legislature intended to displace what Bundy plainly requires. See In re Trust Under Deed of David P. Kulig, Dated January 12, 2001, 175 A.3d 222, 238 (Pa. 2017) (explaining that, as a matter of “judicial reluctance,” this Court will not “find legislative intent to effectuate a substantial change to time-honored legal principles” unless such a change is “is expressed clearly and unmistakably or, at least, follows by necessary implication from the statutory text,” a “stringent standard.”); Carrozza v. Greenbaum, 916 A.2d 553, 566 (Pa. 2007) (“[S]tatutes are not presumed to make changes in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.” (quoting Commonwealth v. Miller, 364 A.2d 886, 887 (Pa. 1976)). Id. at 23. Washington further notes that when this Court decided Johnson, the 2019

amendment to Act 84 was already in effect.14 Moreover, even if the amended version

Act 84 can be read to conflict with the due process requirements articulated in

14 Although the 2019 Amendment to Act 84 was in effect when this Court issued Johnson in October of 2020, we did not mention the amendment or otherwise discuss its text.

[J-32-2023] - 16 Montañez, Bundy, and Johnson, Washington suggests that the legislature “cannot

legislate away [his] right to be heard on the rate increase[,] and the Commonwealth

Court’s displacement of due process mandates based on a legislative declaration

cannot be sustained.” Id. at 27.15

Washington also contests the lower court’s assumption that a post-deprivation

hearing would be fruitless, stating that the “fruitlessness point does not provide a post

hoc rationale for failing to provide a hearing in the first instance” because the “‘right to

be heard does not depend upon an advance showing that one will surely prevail at the

hearing.’” Id. at 24 (quoting Fuentes v. Shevin, 407 U.S. 67, 87 (1972)). Washington

contends that it is wholly unremarkable that many claims by incarcerated individuals will

ultimately prove to be meritless, arguing that due process in this context guarantees the

opportunity to seek a remedy, not the remedy itself.16 He points out that Montañez did

not require the DOC “to implement a deduction policy that permitted ‘exceptions to its

across-the board 20% rate of deduction.’” Id. at 25 (quoting Montañez, 773 F.3d at

486). Instead, “despite having already adjudicated the reasonableness of the 20%

rate,” Montañez did not hold that “incarcerated people no longer needed their due

process rights. Rather, Montañez still required the DOC to ‘provide an opportunity for

15 In this regard, Washington cites our decision in Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, 44 A.3d 3 (Pa. 2012), where, when considering whether the General Assembly could “influence the definition” of a constitutionally-defined phrase, we stated that the “General Assembly” cannot “alter the Constitution by purporting to define its terms in a manner inconsistent with judicial construction; interpretation of the Constitution is the province of the courts.” Mesivtah, 44 A.3d at 7 (quoting Pottstown Sch. Dist. v. Hill Sch., 786 A.2d 312, 319 (Pa. Commw. 2001) (en banc)). 16 Washington cites Justice Wecht’s concurring and dissenting opinion in Johnson, joined by this Author, indicating that “[n]o matter what the underlying merits of a claim may be, our courts must be open to all those who come before them, seeking to invoke their jurisdiction.” Johnson, 238 A.3d at 1197 (Wecht, J., concurring and dissenting).

[J-32-2023] - 17 inmates to object to potential errors in the deduction process’ and unquestionably

enumerated ‘the rate at which funds will be deducted’ as an item to which due process

applied.” Id. Likewise, here, Washington contends that prejudging the merits of his

challenge misapprehends that his injury is not the deprivation of property itself, but the

fact that the deprivation occurred without due process of law. 17 In any event,

Washington observes that in Bundy this Court explained that “nominal damages may be

warranted” if “a procedural due process violation is demonstrated.” Id. at 26 (quoting

Bundy, 184 A.3d at 559); see also Carey v. Piphus, 435 U.S. 247, 266 (1978)

(“Because the right to procedural due process is ‘absolute’ in the sense that it does not

depend upon the merits of a claimant’s substantive assertions, and because of the

importance to organized society that procedural due process be observed, . . . we

believe that the denial of procedural due process should be actionable for nominal

damages without proof of actual injury.”) (citation omitted).

Finally, Washington addresses the Commonwealth Court’s reliance on Beavers.

As to the notion that notice was provided by the enactment of the amendment to Act 84

itself, he agrees with Judge McCullough’s dissent that such reasoning “flips the due

process burden on its head[.]”18 We implicitly rejected a similar rationale in Johnson by

failing to invoke the ignorance-of-the-law-is-no-excuse maxim to address Johnson’s due

17 See Daniels v. Williams, 474 U.S. 327, 339 (1986) (Stevens, J., concurring) (“In a

procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation of property or liberty without due process of law - without adequate procedures.”). 18 Beavers, 2021 WL 5832128 at *7 (McCullough, J., dissenting).

[J-32-2023] - 18 process claim despite acknowledging that maxim when analyzing Johnson’s negligence

claim. Washington’s Brief at 27-28.19

Beavers also held that due process was satisfied because inability-to-pay

concerns were addressed at Beavers’ sentencing. Beavers, 2021 WL 5832128 at *5.

Washington maintains that proposition is “not universally true” because not “all

incarcerated people are entitled to consideration of their financial conditions at

sentencing[.]” Washington’s Brief at 28. He notes that “42 Pa.C.S. § 9726(c) exists

only in the context of non-mandatory fines.” Id. (citing Commonwealth v. May, 271

A.3d 475, 482 (Pa. Super. 2022) (“It is well-established that § 9726(c) does not apply to

mandatory fines.”)).20 Here, however, Washington avers that he was only ordered to

pay costs and restitution, neither of which entitled him to an ability-to-pay assessment

under Section 9726(c) and that the sentencing transcript does not reflect any

consideration of his ability to pay in any event. Id. at 29. Washington also questions

Beavers’ conclusion that no hearing is necessary where the inmate has already been

informed of the total amount owed, as Montañez’s notice requirements include the rate

at which funds will be deducted, which he contends includes notice of rate changes as

occurred in this case. Thus, he argues that a post-deprivation hearing will not be

redundant.

19 See Johnson, 238 A.3d at 1182 n.9 (recognizing that “inmates are not assumed to be

ignorant of the law”). 20 42 Pa.C.S. § 9726(c) provides that a court “shall not sentence a defendant to pay a

fine” unless 1) “the defendant is or will be able to pay the fine;” and 2) “the fine will not prevent the defendant from making restitution[.]”

[J-32-2023] - 19 B. DOC’s Argument21

The DOC recognizes “that prior to making the first deduction from an inmate

wage or personal account pursuant to Act 84, the taking of inmate monies implicates

the Due Process Clause and the inmate must be afforded notice and an opportunity to

be heard.” DOC’s Brief at 7. The Department asserts that, prior to the 2019

amendment to Act 84, it complied with these requirements under its Act 84 deduction

policy by transmitting notice to the inmate of his or her Act 84 obligations and by

affording a process for addressing grievances.22 The DOC maintains that Washington

21 The DOC invites this Court to take judicial notice of its current Act 84 deduction policy, DC-ADM 005 (effective January 15, 2020) (“Current DOC Policy”). DOC’s Brief at 7 n.1. The policy is publicly available to view at the following website: https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx. As Washington has not objected, and because it will aid our review, we take judicial notice of the Current DOC Policy. Moreover, the Current DOC Policy was considered by the Commonwealth Court in Beavers. 22 The notice form found within the Current DOC Policy conforms to Montañez’s notice

requirements, as Bundy required. Current DOC Policy, Attachment 3-A. It identifies the inmate’s total debt obligation broken down into specific amounts owed for fines, costs, restitution, and Crime Victim Compensation Fund fees. Id. It also states which funds are subject to deductions, and the rate(s) at which incoming funds will be garnished. Id. Additionally, the notice describes the grievance process and potential grounds for filing a grievance, including, inter alia, a claim that the obligations are not owed “for any other reason.” Id. Notably, the notice informs inmates that “Under DC-ADM 005, provided that you have at least $10 in your inmate account, your inmate account will be subject to an initial deduction to pay the entire amount of your Crime Victim Compensation/Victim Services Fund fees, and an additional 25% of the remaining funds in your account may also be deducted.” Id. (emphasis added). Inmates are then advised that, subsequently, “all incoming funds (except those specifically noted in the DC-ADM 005) will be subject to a deduction, provided that you have at least $10 in your inmate account.” Id. (emphasis added). The DOC’s policy governing the ten- dollar exception is described in numerous sections of DC-ADM 005. Current DOC Policy §§ 2(B)(4)(a), 3(A)(2)(e)(1), 3(A)(2)(e)(2), 3(C)(2)(b)(1), 3(F)(1-6). Although the Commonwealth Court referenced and quoted from the prior DOC policy in its decision— specifically mentioning the ten-dollar exception—it did not consider the DOC’s continued application of that exception in reaching its decision. See Washington, 2021 (continued…)

[J-32-2023] - 20 “does not dispute that he received the proper notice and opportunity to be heard prior to

the first Act 84 deduction from his inmate account.” Id. at 7.

Prior to the 2019 amendment, the DOC had discretion under Act 84 to determine

the deduction rate, which it set at 20%. Id. at 7-8. According to the Department, the

“most significant legislative change affecting Act 84” was that the DOC is now “required

to make monetary deductions of at least 25% from an inmate’s wage or personal

account to satisfy costs, restitution and other fees.” Id. at 9 (citing 42 Pa.C.S.

§ 9728(b)(5)) (emphasis by DOC). Reasoning that “Act 84 is procedural in nature and

may be applied retroactively, the [DOC] increased [Washington]’s deductions from 20%

to 25%.” Id. The DOC does not allege that it notified Washington of the rate change.

Nevertheless, the DOC maintains it afforded Washington “pre-deprivation due

process to ensure there were no errors in the application of the Department’s policy to

his inmate wage and personal accounts; specifically, the total amount of money

[Washington] owed to the Commonwealth and which accounts the monetary deductions

would be made from.” Id. at 11. However, the DOC recognizes that the issue here is

whether Washington was entitled to additional notice and an opportunity to be heard

“once the rate changed from 20% to 25%[.]” Id. The Department argues that no

additional notice or opportunity to be heard was required in the circumstances of this

case.

First, citing Montañez, the DOC contends “the purpose of notice and meaningful

opportunity to object ‘is to protect against the possibility of error in the application of

DOC policy, such as mistakes in reporting of an inmate’s total liability or to ensure that

(…continued) WL 6139806, at *3. In Beavers, the Commonwealth Court cited directly to the Current DOC Policy, but did not mention the exception. Beavers, 2021 WL 5832128 at *3.

[J-32-2023] - 21 deductions are not made from funds that are exempt.’” Id. at 11-12 (quoting Montañez,

773 F.3d at 486). The DOC argues that Washington has failed “to articulate how the

rate of 25% at which the monies would be deducted from his inmate wage and personal

account will lead to errors in the Department’s application of its Act 84 deduction policy.”

The maintains that, where only the rate of deduction had changed, any potential errors

could have been addressed in response to the earlier notice provided before the

Current DOC Policy came into effect. Id. at 12-13.

Second, the DOC avers that the rate change was a legislative act and that “long-

standing precedent” holds that that “‘[t]he protections of procedural due process do not

extend to legislative actions.’”23 Id. at 13-14 (quoting Ne. Land Dev., LLC v. City of

Scranton, 942 F.Supp.2d 376, 387 (M.D. Pa. 2013) (citing Rogin v. Bensalem Twp., 616

F.2d 680, 693 (3d Cir. 1980)). Because the rate change was initiated by a legislative

act, the DOC argues that “the legislative process provide[d] all the due process” that

was required. Id. at 14. The DOC contrasts legislative acts with “[a]djudicative acts,”

which, “on the other hand, require the provision of procedural due process.” Id. “An act

is ‘adjudicatory’ when the decision ‘require[s] factual findings on the particular status of

a particular individual,’ while legislative decisions are those that ‘rest on more general

findings requiring analysis and evaluation of factors not uniquely related to any specific

individual.’” Id. (quoting Powelton Civic Home Owners Ass’n v. H.U.D., 284 F.Supp.

809, 829 (E.D.Pa. 1968)). Here, the DOC contends that the change in rate at which monies are to be deducted from [Washington]’s inmate account pursuant to Act 84 was done by legislative activity and was not adjudicatory in nature. The amendment to Act 84, passed by the Pennsylvania General Assembly, directing the Department … to deduct at

23 This doctrine (hereinafter “Legislative Act Doctrine”) originated in Bi-Metallic Investment Company v. State Board of Equalization, 239 U.S. 411 (1915).

[J-32-2023] - 22 least 25% of deposits made to an inmate wage and personal account applied to property of all inmates who are in the custody of the [DOC], not merely to [Washington] specifically. Rogin, 616 F.2d at 693. The [a]mendment to Act 84 constitutes an across-the-board change to the rate of deduction of a minimum of 25% for all inmates, rather than the specific application of the rate of deduction of a minimum of 25% to only [Washington]. Id. Thus, the [a]mendment to Act 84 can be characterized as a legislative act. Id. DOC’s Brief at 15.

Any process that was due regarding the amendment to Act 84 was, according to

the DOC, provided by the legislative process. Id. at 15-16.24 The DOC notes that the

Ninth Circuit Court of Appeals “extended” this legislative act rationale “to inmates and

deduction of inmate monies” in an unpublished case. Id. at 17; see Craft v. Ahuja, 475

F.App’x. 649 (9th Cir. 2012). In that case, the Ninth Circuit held that the “district court

… properly dismissed Craft’s procedural due process claim because the deductions”

from his prisoner account “were effected by a valid act of the California legislature and

the legislative process satisfies the requirements of procedural due process.” Craft, 475

F.App’x at 650. Similarly, an intermediate appellate court in the State of Washington

applied the same rationale. See In re Metcalf, 963 P.2d 911, 918 (Wash. Ct. App.

1998) (“When a challenge is to a legislative enactment, the legislative process provides

all the process due.”). Because the Act 84 rate change sets forth a mandatory minimum

24 For this proposition, the DOC cites Atkins v. Parker, 472 U.S. 115, 128–30 (1985),

where the High Court held that although welfare benefits are treated as a form of property protected by the Due Process Clause, Congress has “plenary power to define the scope and the duration of the entitlement to food-stamp benefits, and to increase, to decrease, or to terminate those benefits based on its appraisal of the relative importance of the recipients’ needs and the resources available to fund the program[,]” and that the “procedural component of the Due Process Clause does not impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.” (internal citations and quotation marks omitted).

[J-32-2023] - 23 deduction rate, and because Washington was subject to the minimum deduction rate,

the DOC contends that Washington is effectively challenging the constitutionality of the

amendment, and “pursuant to Bi-Metallic[] and its progeny[,] . . . the protections of due

process, notice and opportunity to be heard, do[] not extend to legislative actions, which

is how the change in the rate of deduction to Act 84 came about.” DOC Brief at 16-17.25

Third, the DOC endorses the Commonwealth Court’s conclusion in Beavers that

inmates were provided notice of rate change when Act 84 was published. Id. at 19.

Thus, the DOC maintains that due process principles did not require the DOC to notify

Washington of the rate change because he was presumed to know the law upon its

enactment. Id. Fourth, the Department argues that the Commonwealth Court did not

err in sustaining its preliminary objections based on the DOC’s ostensible lack of

discretion in applying the new 25% rate, contending that as “the Commonwealth Court

in both Washington and Beavers noted, a hearing on the 25% statutory reduction rate

would ‘serve no purpose because the Department lacks the statutory authority to deduct

less than 25% of deposits made to an inmate account.’” Id. at 20 (quoting Beavers,

2021 WL 5842128 at *5; Washington, 2021 WL 6139806 at *4). The DOC observes

that Washington has not challenged the constitutionality of Act 84 or its 2019

amendment. Id.

Nevertheless, the DOC contends that, as amended, Act 84 clearly and

unambiguously requires the DOC to apply the 25% minimum rate without exception. Id.

at 21-23. As to Washington’s argument that Section 9728(b)(5)(iv) permits deviation

from that minimum, the DOC argues that the provision “confers upon the [DOC] some

25 The DOC further argues that there “is no basis to conclude that the lack of a legislative process available to inmates changes the constitutional equation” because inmates have been lawfully disenfranchised. DOC’s Brief at 18.

[J-32-2023] - 24 discretion in the procedure or policy that it chooses to implement in collecting the

monies, it does not authorize the Department to change the will of the General

Assembly to have less than a minimum of 25% of deposits from inmate accounts be

deducted as [Washington] suggests.” DOC’s Brief at 24. For that reason, the DOC

contends that “a hearing would serve no purpose because the [DOC] lacks the statutory

authority to deduct less than 25% of the deposits made to an inmate’s account”26 and

that Washington is therefore “not entitled to an opportunity to be heard to argue for a

return to the 20% rate that was imposed at the time of his sentencing.” Id.

Finally, the DOC maintains that Washington in not entitled to an ability-to-pay

hearing “because he failed to preserve the issue.” Id. at 25. The lower court stated that

a change of circumstances might include the threat of additional sanctions for

nonpayment, and Bundy suggested that a material change in circumstances “could be

expanded to include circumstances where an inmate may lack sufficient funds to pursue

or protect his legal rights[,]” but that Washington failed to challenge that holding by the

lower court. Id.

C. Washington’s Reply

In his reply brief, Washington accuses the DOC of failing to contend with the

controlling precedents of Bundy and Johnson. He argues that under these authorities, the DOC was required to provide [him] notice of the increased “rate at which funds will be deducted from his account,” Bundy, 184 A.3d at 553, and “a reasonable opportunity to explain why the past and/or intended deductions” at the 25% rate “should not take place notwithstanding the dictates of Act 84.” Johnson, 238 A.3d at 1183[.] Indeed, this same essential holding has been reached in every precedent that has addressed

26 But see Current DOC Policy §§ 2(B)(4)(a), 3(A)(2)(e)(1), 3(A)(2)(e)(2), 3(C)(2)(b)(1),

and 3(F)(1-6).

[J-32-2023] - 25 constitutional due process within the context of Act 84 deductions. Washington’s Reply Brief at 3.

Furthermore, Washington alleges that the DOC only presents “two novel

arguments” to support the Commonwealth Court’s decision to dismiss Washington’s

complaint based upon the DOC’s preliminary objections. He contends that both of the

DOC’s arguments—that the Legislative Act Doctrine applies and that it would be

fruitless to provide a post-deprivation hearing—“are waived because they were not

developed below.” Id. at 4. In any event, Washington asserts that neither theory holds

water.

As to the Legislative Act Doctrine, Washington contends that it was not raised in

the DOC’s preliminary objections (but for a fleeting mention in the brief filed in support

of the preliminary objections), and should be deemed “forfeited” for lack of development

below. Id. at 4-5. He also argues that the Legislative Act Doctrine does not apply in the

circumstances of this case. He points out that he solely challenges “the DOC’s decision

to apply Act 84 to him, specifically its summary imposition of a 25% deduction rate”

pursuant to the Current DOC Policy which implemented the 2019 amendment to Act 84.

Id. at 6. Washington points out that in his pro se petition for review he never challenged

the constitutionality of the 2019 amendment, but instead he contested the Current DOC

Policy’s implementation of the new Act 84 mandate. Id.

Because Washington asserted “his due process right to notice and an

opportunity to be heard regarding the DOC’s decision to apply Act 84 to him[,]” his

challenge is to “an adjudicatory act triggering due process[,]” not the implementing

legislation that might otherwise have implicated the Legislative Act Doctrine. Id. at 6-7.

Washington further contends the DOC has admitted as much in its brief:

[J-32-2023] - 26 As the DOC explains, “Act 84 required the Department to develop guidelines related to its responsibility under the statute,” and the DOC did that by “developing policy, in the form of DC-ADM 005.” DOC[’s] Br[ief] at 7. Notably, that policy requires the DOC’s “Business Manager [] to transmit to the inmate [a] Notification of Deductions Memo along with the official court documents relied upon to establish the deductions.” Id. This individualized, adjudicatory procedure reaffirms that the DOC is fully in the driver’s seat in deciding how Act 84 is applied to each person incarcerated in the Commonwealth. The DOC sets forth its own policy for how deductions are to occur and then makes its own individualized determination, based on its review of relevant documents, as to how and in what amount deductions are to be taken in each case. Washington Reply Brief at 7. Additionally, Washington argues that Act 84 gives the

Department “discretionary authority to select the rate of deduction applicable to” him

and to “establish its own guidelines” regarding “how it will exercise that discretion.” Id.

(citing 42 Pa.C.S. § 9728(b)(5)(i) & (iv)). He claims that it is implicit in the obligation to

set a minimum rate of 25% that the Department has the discretion to apply a greater

rate. Id. at 8. Washington therefore contends that by “selecting a specific deduction

rate,” the DOC exercises judgment in “evaluating personal and financial circumstances,

including with respect to the potential hardship that a high rate of deduction may impose

both on the incarcerated person and his or her family and the impact on his or her

rehabilitation both before and after imprisonment.” Id. at 9.

Washington further insists that Londoner v. City & County of Denver, 210 U.S.

373 (1908), is the “seminal case” for making a distinction between legislative and

adjudicative acts. Id. Londoner involved a statutory tax scheme. Although the Court

determined that the taking of property via assessment, apportionment, and/or the

collection of taxes was not itself adjudicatory, it nonetheless held that when the state

delegated the authority to set the tax rate (and to determine upon whom it would be

levied) to a subordinate institution, taxpayers were entitled to due process.

[J-32-2023] - 27 Washington’s Reply Brief at 9 (citing Londoner, 210 U.S. at 385). Washington

contends that this case is analogous in that the new Act 84 minimum deduction rate

originated with a legislative act but his challenge is to the adjudicatory act by the DOC

that applied that rate to him. Id. at 10.

Moreover, Washington maintains that the Department has failed to assert any

controlling authority for its Legislative Act Doctrine argument. Rather, he argues that

“the DOC principally resorts to out-of-state, often non-precedential appellate decisions

and federal district court cases, none of which are on point.” Id. at 10-11.27 Moreover,

Washington argues that, despite “the fact that the DOC chose to apply Act 84 in a

uniform way” before the 2019 amendment “was not grounds for depriving the

challengers in Bundy and Johnson of their rights to due process” under the legislative

act theory. Id. at 13.

Next, Washington disputes the DOC’s contention that the 25% minimum rate

precluded any relief, thereby supplanting any need for a hearing because it would be a

fruitless endeavor. Washington objects to our consideration of that rationale because

the DOC did not include that argument when making its preliminary objections. Id. at 14

(“While it referenced the mandatory language of Act 84 in passing, no substantive

argument was developed like the one it advances now.”). Alternatively, Washington

27 Washington discusses Bi-Metallic, one of the only United States Supreme Court cases cited by the DOC applying the Legislative Act Doctrine to a due process challenge, arguing that it is factually distinguishable. In contrast to Londoner, Bi- Metallic involved a due process challenge directed at a statute that set a uniform tax rate in Denver that “applied categorically across the board.” Id. at 11 (citing Bi-Metallic, 239 U.S. at 443). Washington contends that his due process challenge targets only the DOC’s exercising “its authority in applying” Act 84 “to him.” Id. He argues that the same distinction can be made regarding the DOC’s reliance on Metcalf and Rogin, although neither of those cases can be construed to control here. Washington’s Reply Brief at 11-12.

[J-32-2023] - 28 argues that the DOC’s argument lacks merit. First, he maintains that the constitutional

mandate set forth in Bundy and Johnson cannot be disregarded merely because the

General Assembly amended Act 84. Id. at 14-15. Furthermore, in amending Act 84 in

2019, “the General Assembly specifically included a provision in Act 84 that authorizes

the DOC to develop ‘guidelines’ through which limited deviations may be permitted

where appropriate.” Id. at 15 (quoting 42 Pa.C.S. § 9728(b)(5)(iv)).

Washington points out that this Court’s most recent consideration of Act 84 in

Johnson occurred after the statute was amended; yet, this Court nevertheless stated

that inmates must be given notice of the rate of deduction and the opportunity to object

to deductions “notwithstanding the dictates of Act 84.” Id. at 15 (quoting Johnson, 238

A.3d at 1183). Thus, he contends that due process always applies “when adjudicatory

deprivations of property occur.” Id. at 15. He further avers that, as this Court held in

Bundy, due process does not only afford an opportunity to object to garnishment based

on a recognized or general exemption. “[D]ue process serves another equal and ‘[j]ust

as important’ function: to ‘avoid erroneous deprivations before they occur[.]’” Id. at 15

(quoting Bundy, 184 A.3d at 558). Thus, Washington contends that “even where no

meritorious substantive challenge lies as to the rate of deduction, due process must be

afforded.” Id. at 15-16 (citing Montañez, 773 F.3d at 486 (“Because we find the

deduction rate to be reasonable, the DOC need not entertain a challenge to the rate of

deduction, though it must provide an opportunity for inmates to object to potential errors

in the deduction process.”)).

Finally, Washington concludes that the DOC’s lack-of-discretion-to-afford-relief

logic “is not … consistent with the DOC’s own policy and practice under Act 84.” Id. at

16. Washington points to the DOC’s policy which exempts inmates from the 25%

deduction for Act 84 if their accounts hold $10.00 or less. Id. at 16; see Current DOC

[J-32-2023] - 29 Policy, § 2(B)(4)(a). He contends that “nothing in the statute expressly speaks to such

deviations, yet the DOC nevertheless has read Act 84 as permitting them.” Id. at 17.28

In any event, he reiterates this Court’s statement in Koehler, 229 A.3d at 933 n.10, that

the “right to a remedy is, itself, a right protected by due process” and our statement in

League of Women Voters, 178 A.3d at 822, that this “Court possesses broad authority

to craft meaningful remedies when required.” Id. at 18.

D. Amici Curiae

Amici Curiae, the American Civil Liberties Union, the Juvenile Law Center,

Mothers of Incarcerated Sons, the Pennsylvania Institutional Law Project, and Dr. Lisa

Servon29 (collectively, “Amici”), filed a brief endorsing Washington’s arguments. Amici

wrote “separately to emphasize the significant harms that increased deductions may

create.” Amici’s Brief at 4.30

28 In this regard, Washington posits that the disconnect between the Current DOC Policy and the Department’s arguments in this case demonstrate “that Act 84, at the very least, is ‘reasonably susceptible to two interpretations.’” Washington’s Reply Brief at 17 (quoting Moore v. Jamieson, 306 A.2d 283, 292 (Pa. 1973)). In such circumstances, he contends that this Court cannot presume a result that offends the Constitution, nor assume a legislative intent to “effectuate a substantial change to time- honored legal principles” absent clear and unmistakable evidence of such intent. Id. (quoting In re Trust Under Deed of David P. Kulig Dated Jan. 12, 2001, 175 A.3d 222, 238 (Pa. 2017)). “Consistent with these principles,” Washington argues, “it should be presumed that the General Assembly did not intend to contravene Bundy’s well-settled constitutional analysis,” nor did it “intend to leave the DOC powerless to make reasonable, limited exceptions to a presumptive deduction rate where compelling cases of hardship show that someone’s property should not be further deprived.” Id. at 17. 29 Dr. Servon, a professor at the University of Pennsylvania, has conducted research

into financial justice and mass incarceration. 30 Amici argue that, contrary to the DOC’s representations, “[p]risons do not provide

incarcerated individuals with all of the necessities they require free of charge” and, consequently, “[f]inancial accounts play a significant role in ensuring the necessities of life for those in state prisons, even with the low balances held by many.” Amici’s Brief at 8. They cite national studies showing “that without sufficient funds in commissary (continued…)

[J-32-2023] - 30 (…continued) accounts, incarcerated individuals are unable to meet their nutritional needs, pay for medical co-pays, and communicate with family and the courts.” Id. For example, one study cited by Amici that examined commissaries in Illinois and Massachusetts demonstrated that up to 84% “of funds spent at the commissary go[] toward food and hygiene products.” Id. at 9. Additionally, inmates are also responsible for paying for clothing, medical and pharmaceutical needs, and costs for personal and legal correspondence. Id. Amici explain that paying for these necessities through prison work is a Sisyphean task, with typical prison wages ranging from $0.19 to $0.42 an hour under the DOC’s stewardship, or less than three to six percent of the federal minimum wage of $7.25 an hour. Id. at 22. At those rates, inmates need to work four to eight hours to buy aspirin, seventeen to thirty-eight hours to purchase menstrual pads, and twenty-four to fifty-three hours to obtain a $10.00 phone card based on the DOC’s commissary prices. Id. at 10. “A five-percent increase in the amount deducted from someone’s financial account is therefore hugely significant” in that prison economy, which forces “many individuals to make difficult choices between having enough food to eat, dealing with a pounding migraine, or calling their family.” Id. at 9-10. Apart from prison work, Amici explain that inmate accounts are primarily funded from “personal deposits upon entering prison” and “deposits from family members or friends.” Id. at 21. Because prisoners are disproportionately unemployed or underemployed prior to incarceration, inmates tend to be “dependent on their families for regular gifts in order to meet their needs.” Id. at 24. And when families choose to bear the burden of providing their incarcerated loved ones with financial assistance to pay for necessities, they are hit with processing fees of up to 20% of the amount of their deposits even before Act 84 extracts its toll. Id. Consequently, Amici advise that “[t]hese fees, together with heightened deductions for court costs, may make families hesitant to deposit any funds in their loved ones’ accounts.” Id. at 25. Amici further contend that when “funds are subject to deductions, the ripple effect impacts [inmates’] families as well, as ‘the payment of fines, costs, and restitution’” effectively “shifts from the convicted individual to their family, whose gifts are subject to the deductions and who must then give that much more money to make up for the deductions.” Id. Amici believe this shift has a “ripple effect” that ultimately exacerbates the “the long-term harms of incarceration on individuals’ immediate families[,]” and only more so when the Act 84 deduction rate is increased. Id. Moreover, Amici contend that “[a]dditional deductions also reduce the amount individuals will have on hand to cover their basic living costs upon re-entry,” which tends to frustrate their ability to find employment and obtain housing upon release. Id. at 28-29. Finally, in addition to supporting Washington’s due process claims generally, Amici caution this Court not to presuppose the adequacy of the due process provided regarding an inmates’ ability to pay at sentencing, noting that (continued…)

[J-32-2023] - 31 III. Analysis

“Our review of an order sustaining preliminary objections in the nature of a

demurrer is de novo and plenary.” Bundy, 184 A.3d at 556. “Preliminary objections

should be sustained only in cases that are clear and free from doubt.” Pennsylvania

AFL-CIO ex rel. George v. Commonwealth, 757 A.2d 917, 920 (Pa. 2000). Appellate

review of an order sustaining preliminary objections consists of determining “whether it

is clear from doubt from all the facts pleaded that the pleader will be unable to prove

facts legally sufficient to establish a right to relief.” Id. Here, the Commonwealth Court

sustained the DOC’s preliminary objections because it “discern[ed] no due process

claim” based on its conclusion that the Department had no additional due process

obligation to Washington occasioned by the increase to the Act 84 deduction rate

applied to him. Thus, in its most general form, the question before us is whether the

Commonwealth Court erred in holding that there were no forms of relief to which

Washington was entitled based on his claim that the DOC violated his right to

procedural due process.31

(…continued) [w]hile discretionary fines can only be imposed based on a defendant’s ability to pay per Commonwealth v. Ford, 217 A.3d 824 (Pa. 2019), current Superior Court case law says that so-called “mandatory” fines must be imposed regardless of ability to pay. See, e.g., Commonwealth v. May, 271 A.3d 475 (Pa. Super. [] 2022) [(]petition for allowance of appeal filed 129 MAL 2022[)]. Restitution must also be imposed without any consideration of the defendant’s finances. See 18 Pa.C.S. § 1106(c). Id. at 35 (footnote omitted). 31 The Commonwealth Court separately sustained the DOC’s preliminary objections as

to Washington’s distinct claim that he was entitled to an ability-to-pay hearing. Washington has not raised a challenge to that ruling in this appeal.

[J-32-2023] - 32 Under this general framework, we observe that Washington’s two claims are

interrelated. His first claim concerns whether he was entitled to notice and an

opportunity to be heard before the DOC increased the Act 84 deduction rate applicable

to him. Washington’s second claim challenges one of the Commonwealth Court’s

specific justifications for answering his first question in the negative—that the minimum

deduction rate of 25% established under the current version of Act 84 prevented the

DOC from affording relief, such that any remedy required by due process principles

would be fruitless. As we ultimately view the second claim as subsidiary to the first in

the context of this appeal, we will address them together.

A. Act 84 Precedent

No state may “deprive any person of life, liberty, or property, without due process

of law.” U.S. CONST. amend. XIV § 1. This axiom of American jurisprudence, termed

procedural due process, “imposes constraints on governmental decisions which deprive

individuals” of any of these fundament rights. Mathews v. Eldridge, 424 U.S. 319, 332

(1976). To deprive an individual of a property interest, procedural due process dictates

that at least “some form of hearing is required” before the taking occurs. Id. at 333.

The right to a hearing is not merely formalistic; it must be conducted “at a meaningful

time and in a meaningful manner.” Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). And although flexible to accommodate different circumstances in which due

process concerns arise, identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[J-32-2023] - 33 Id. at 335 (hereinafter, “the Mathews Test”).

Importantly, the right to procedural due process is distinct from the right the

government seeks to impair. “Procedural due process rules are meant to protect

persons not from the deprivation, but from the mistaken or unjustified deprivation of life,

liberty, or property.” Carey v. Piphus, 435 U.S. at 259. While the requirements of

procedural due process vary across different contexts, the United States Supreme

Court “repeatedly has emphasized that procedural due process rules are shaped by the

risk of error inherent in the truth-finding process[.]” Id. (quotation marks omitted) (citing

Mathews). These rules are intended to “minimize substantively unfair or mistaken

deprivations of life, liberty, or property by enabling persons to contest the basis upon

which a State proposes to deprive them of protected interests.” Id. (quotation marks

omitted).

In this case, we consider a government taking of a peculiar sort, one that is

authorized by statute and designed to compensate victims and the government for the

consequences of criminal acts and the costs of prosecution. In 1998, our General

Assembly passed Act 84, which, inter alia, permitted the DOC to make deductions from

inmates’ prisoner accounts during their incarceration. Act 84 deductions are governed

by Section 9728 of the Judicial Code. Following its 2019 amendment, Act 84 reads, in

pertinent part: (5) Deductions shall be as follows:

(i) The Department of Corrections shall make monetary deductions of at least 25% of deposits made to inmate wages and personal accounts for the purpose of collecting restitution, costs imposed under section 9721(c.1), filing fees to be collected under section 6602(c) (relating to prisoner filing fees) and any other court-ordered obligation.

[J-32-2023] - 34 ...

(iv) The Department of Corrections and each county correctional facility shall develop guidelines relating to its responsibilities under this paragraph. The guidelines shall be incorporated into any contract entered into with a correctional facility.

42 Pa.C.S. § 9728(b)(5). It is undisputed that prior to the 2019 amendment, Act 84 did

not dictate a particular deduction percentage. Pursuant to its internal polices, the DOC

typically deducted 20% from an inmate’s deposits, which was the rate applied to

Washington before it increased to 25% in 2020.

This Court first addressed the due process implications of the pre-amended

version of Act 84 in Buck. Darryl Buck, imprisoned since 2001, was ordered “to pay

fines, costs, and restitution in the amount of $10,000.00.” Buck, 879 A.2d at 158.

Pursuant to Act 84, the DOC began deducting 20% from deposits to Buck’s account in

2002 to satisfy his court-ordered financial obligations. Id. Buck filed a complaint in the

Commonwealth Court alleging a due process violation and seeking to enjoin the DOC

from making the deductions without an ability-to-pay hearing. Id. at 159. An en banc

panel of the Commonwealth Court sustained the DOC’s preliminary objections.32

On appeal from that decision, Buck argued that in implementing Act 84 the DOC

had violated his due process rights by failing to seek a hearing before the trial court. He

32 The Commonwealth Court first rejected Buck’s claim that the DOC did not have the

authority to determine the amount of deductions based on the argument that only trial courts had the authority to impose installment payments, reasoning that Act 84 specifically delegated that authority to the DOC. See Buck v. Beard, 834 A.2d 696, 701 (Pa. Commw. 2003) (en banc), aff’d, 879 A.2d 157 (Pa. 2005). The court also rejected Buck’s assertion that, even if the DOC had been authorized to make the deductions, that it had created a financial hardship, reasoning that “a general allegation that he cannot afford to have 20 percent of his funds deducted is not a sufficient allegation to establish any harm.” Id.

[J-32-2023] - 35 alleged “that the appropriate procedure is for the trial court to determine, at the

sentencing hearing, the percentage of the monthly deduction from an inmate’s

account[,]” and that the DOC’s taking “funds from his account without such a pre-

deprivation hearing fails to satisfy the requirements of due process.” Id. at 159-60. This

Court “[d]istilled” the question before it to “whether due process requires a specific

judicial determination of ability to pay before the” DOC makes deductions pursuant to

Act 84. Id. at 160 (emphasis added).

In rejecting that narrowly framed issue, the Buck Court first recognized that

prisoners have a cognizable property interest in their inmate accounts. Id. at 160. Buck

further acknowledged that, “because prisoners have a property interest in their

accounts, ‘inmates are entitled to due process with respect to any deprivation of this

money.’” Id. (quoting Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997)). However, this

Court determined that Buck “had notice and an opportunity to be heard at his

sentencing hearing” because “he was on notice of the” DOC’s “statutory authority to

deduct funds from his account” at the time of the hearing (fulfilling the notice

requirement), and because “he had the opportunity to present evidence to persuade the

court not to impose fines, costs, and restitution” (fulfilling the hearing requirement). Id.

Thus, this Court concluded that Buck’s “sentencing hearing provided him with the

required pre-deprivation due process.” Id. at 161.

Subsequently, in Montañez, a consolidated appeal in the Third Circuit, the

plaintiffs, Montañez and Hale, filed claims under 42 U.S.C. § 1983 alleging that they had

been deprived of their procedural due process rights when their prisoner accounts were

subject to automatic deductions pursuant to Act 84. Montañez, 773 F.3d at 476-77.

The DOC’s policy at that time provided for a 20% rate for Act 84 deductions, with the

[J-32-2023] - 36 caveat that that Act 84 deductions would only be made if the inmate’s balance

exceeded $10.00. Id. at 477. The Montañez court recognized that the DOC’s authority to make deductions is automatically triggered when it receives a sentencing order that includes a monetary portion. There is no requirement in the Policy that the relevant court order contain a provision for the automatic deduction of funds from an inmate account. The DOC does not provide inmates with any hearing or other opportunity to be heard before the deductions commence.

Id.

The Third Circuit rejected Montañez’s claim as untimely, and thus focused the

remainder of its opinion on Hale’s Section 1983 due process claim.33 With regard to

Hale, “it was undisputed that the DOC provided no opportunity for Hale to be heard

regarding his record of court-ordered monetary obligations or the automatic deductions.”

Id. at 478. However, there was a factual dispute between the parties regarding “the

exact parameters of the notice Hale received regarding the DOC Policy and Act 84

upon his intake to the DOC prison system.” Id. at 477. No specific notice of the DOC’s

policy or its Act 84 deduction rate had been provided at Hale’s sentencing hearing, and

33 Montañez admitted “that he received an inmate account statement every month, which included a debit described as ‘Act 84 transaction.’” Montañez, 773 F.3d at 479. Montañez was not advised of the DOC’s Act 84 polices at sentencing, nor had his total financial obligation been finalized at that time. Id. at 478. Montañez also disputed whether he had been notified of the DOC’s Act 84 policies upon his entry into the prison system. However, unlike Hale, prior to filing his Section 1983 claim, Montañez had previously filed a direct appeal from his judgment of sentence, and later filed petitions and other requests to modify his court-ordered financial obligation. Id. at 479. The Third Circuit determined that Montañez knew or should have known of the Act 84 deductions within a month of the first garnishment, as he “received an inmate account statement that reflected the debit from his account” within “a month of the first deduction[.]” Id. at 480. “The statute of limitations for a § 1983 claim arising in Pennsylvania is two years[,]” but Montañez did not file his complaint in federal district court until more than four years after his claim accrued. Id.

[J-32-2023] - 37 the total costs assessed to him were “not determined until sometime after the

sentencing hearing.” Id. Both parties agreed that “inmates have a constitutional

property interest in funds held in prison accounts.” Id. at 482. Thus, the Court turned to

consider whether the DOC officials “provided sufficient process when they implemented

the DOC Policy and deducted funds from Hale’s inmate account.” Id.

The court first emphasized that Hale was not challenging his sentence or the

sentencing court’s imposition of financial obligation for fines, restitution, and costs, nor

did he claim that any additional process must be given by the Pennsylvania courts

rather than DOC administrators. Id. (recognizing Buck’s rejection of “the argument that

the due process considerations require a judicial default hearing before deductions may

be made from inmate accounts”). Rather, Hale’s claim was “narrowly focused on

whether inmates must be provided with notice of the DOC[‘s Act 84] Policy and an

opportunity to be heard regarding application of th[at] Policy prior to the first deduction,”

and whether the existing procedures implemented were sufficient in that regard. Id. at

482–83.

The Montañez court then turned to consider the Mathews Test: (1) “the private interest that will be affected by the official action”, (2) “the risk of an erroneous deprivation of such interest through the procedures used” and the value of “additional or substitute procedural safeguards”, and (3) the governmental interest, “including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

Id. at 483 (quoting Mathews, 424 U.S. at 335).

[J-32-2023] - 38 The court concentrated on the second and third factors, as there was no dispute

regard the first.34 The Third Circuit thus considered whether “additional pre-deprivation

process” beyond that provided by a sentencing hearing “would be effective and whether

that process would be overly burdensome on the government.” Id. at 483. The court

recognized the “default” rule that the government should provide a pre-deprivation

hearing, if feasible, “regardless of ‘the adequacy of a post[-]deprivation tort remedy to

compensate for the taking[,]’” if pre-deprivation safeguards would be useful. Id. (quoting

Zinermon v. Burch, 494 U.S. 113, 132 (1990)). If the default rule does not apply, such

as where a “pre-deprivation process is not feasible,” or where “pre-deprivation hearings

are impractical or would be meaningless,” no pre-deprivation process is required. Id. at

483-84. Summarizing its review of cases applying these principles, the court stated: [W]hen pre-deprivation process could be effective in preventing errors, that process is required. When deductions from inmate accounts involve “routine matters of accounting” based on fixed fees[35] or where temporal

34 No party contested that state prisoners “have a property interest in the funds in their

inmate accounts.” Montañez, 773 F.3d at 483 (citing Reynolds, 128 F.3d at 179). Furthermore, there was no quarrel regarding the Commonwealth’s “‘important state interest’ in collecting restitution, costs, and fines from incarcerated criminal offenders to compensate victims.” Id. (quoting Mahers v. Halford, 76 F.3d 951, 956 (8th Cir. 1996)). Thus, as to the third Mathews Test factor, the court focused on the burdens on the government that would be imposed through the implementation of additional procedural safeguards. 35 In Tillman v. Lebanon County Correctional Facility, 221 F.3d 410 (3d Cir. 2000), the

Third Circuit found it was “impractical to expect the prison to provide pre[-]deprivation proceedings” for a per diem charge for housing expenses. Id. at 422. Importantly, in Tillman, the Third Circuit found it significant that no prison services were denied if the prisoner’s account was overdrawn due to the fees, nor could inability to pay result in “extended prison time or reincarceration.” Id. at 414. The cost recovery program involved “routine matters of accounting, with a low risk of error[,]” and any such errors could “be corrected through the prison’s grievance program without any undue burden on a prisoners’ rights.” Id. at 422. Moreover, the Third Circuit indicated that Tillman had adequate notice of both the cost recovery and grievance policies, and he “had an (continued…)

[J-32-2023] - 39 exigencies require immediate action,[36] pre-deprivation hearings are not required. In either event, however, inmates are entitled to some pre-deprivation notice of the prison’s deduction policy. Montañez, 773 F.3d at 484 (internal citations omitted).

Applying these principles to the Act 84 deductions from Hale’s account, the court

determined that there was “nothing about the DOC Policy that requires the DOC to take

immediate action to deduct funds from inmate accounts to satisfy court-ordered

obligations.” Id. It found that a “short delay that might result from offering inmates an

opportunity to be heard on application of the DOC Policy before it is applied would not

seriously undermine the Commonwealth’s ability to recover costs.” Id. Unlike the

assessments in Tillman, the Third Circuit found that the DOC’s Act 84 policy did “not

involve fixed assessments that uniformly apply to all inmates[,]” and “pre-deprivation

process would mitigate at least some risk of error.” Id.37 Moreover, the court stated that

(…continued) adequate post[-]deprivation remedy in the grievance program.” Id. “On the other hand, to require pre[-]deprivation proceedings for what are essentially ministerial matters would significantly increase transaction costs and essentially frustrate an important purpose of the program, which is to reduce the county’s costs of incarcerating prisoners.” Id. 36 In Reynolds, the Third Circuit held that no pre-deprivation process for the authorization of medical fees was required before they were deducted from inmate accounts. Reynolds reasoned, inter alia, that “delaying treatment while prison officials haggled with an inmate about signing a form authorizing the assessment of a fee could lead to frustrating and hazardous Eighth Amendment problems” as prison officials are constitutionally required to provide medical treatment in a variety of circumstances. Reynolds, 128 F.3d at 180. 37 The court identified both actual error in the calculation of Hale’s total Act 84 obligation, as well as hypothetical risks of error given discretionary aspect of the DOC’s Act 84 policy involving exemptions. In deference to Hale’s factual averments given the court’s standard of review, Hale had not received notice of his total obligation, and had not been afforded an opportunity to object despite an obvious actual error in the DOC’s calculation of the amount of restitution he owed. Montañez, 773 F.3d at 484. (continued…)

[J-32-2023] - 40 “pre-deprivation process need not be administratively burdensome[,]” recognizing that

other states “have been able to implement pre-deprivation process in similar

circumstances.” Id. at 484. Applying the Mathews Test, the court concluded that “the

government’s interest in collecting restitution, fines, and other costs from convicted

criminals does not overcome the default requirement that inmates be provided with

process before being deprived of funds in their inmate accounts,” rejecting the District

Court’s determination that the DOC’s post-deprivation grievance procedure satisfied

procedural due process. Id. at 485.

We adopted Montañez’s rationale regarding Act 84 deductions in this Court’s

unanimous decision in Bundy. As is the case here, Bundy exhausted his administrative

remedies before seeking judicial relief. Bundy, 184 A.3d at 553. In Bundy’s complaint,

he asserted that the DOC had violated the dictates of Montañez by failing to afford him

pre-deprivation notice and an opportunity to be heard prior to making Act 84 deductions

from his prison account. Id. at 554. The Commonwealth Court sustained the DOC

officials’ preliminary objections in the nature of demurrer, reasoning that adequate

notice had been provided because Bundy “was aware of the amounts he owed and had

unsuccessfully sought relief from those obligations in the common pleas court.” Id. at

555.

After resolving other matters, this Court addressed Bundy’s due process claim.

Citing Buck, Tillman, and Montañez, we recognized that prisoners have a cognizable

property interest in the money in their prisoner accounts, the deprivation of which must

(…continued) Moreover, the court recognized “a pre-deprivation opportunity to object to the assessments might [also] prevent deductions from being made from funds exempt from the DOC’s policy.” Id.

[J-32-2023] - 41 comport with due process principles. Id. at 556. Citing Zinermon, we acknowledged

that due process is a fluid concept across different circumstances, the particulars of

which are determined by consideration of the Mathews Test. Id. at 557. Moreover, we

restated Mathews’ mandate that the “central demands of due process are notice and an

opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

(quotation marks omitted).

The Bundy Court then highlighted that the second Mathews Test factor “reflects

that avoiding erroneous deprivations before they occur is an important concern under

the Due Process Clause” and that there “is thus a general preference that procedural

safeguards apply in the pre-deprivation timeframe.” Id. Bundy recognized that pre-

deprivation process is not feasible in all circumstances, and when not feasible, “the

availability of a meaningful post-deprivation remedy satisfies due process.” Id.

However, Bundy clarified that the availability of a post-deprivation remedy is not

dispositive of a due process claim, recognizing the United States Supreme Court’s

directive that the “controlling inquiry is solely whether the state is in a position to provide

for pre[-]deprivation process.” Id. (citing Hudson v. Palmer, 468 U.S. 517, 534

(1984)).38

38 In Hudson, a prisoner, Palmer, alleged that a prison official, Hudson, intentionally

destroyed Palmer’s property while conducting a “shakedown search” of his cell. Hudson, 468 U.S. at 530. Among other constitutional challenges, Palmer alleged that Hudson’s actions “deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment[,]” arguing that pre-deprivation process should have been provided. Id. The lower court had rejected Hudson’s due process claim on the basis that no violation had occurred because of the existence of “state tort remedies available to redress the deprivation[.]” Id. at 520. Hudson rejected that reasoning, stating that “post[-]deprivation procedures satisfy due process” only when “the state cannot possibly know in advance of a negligent deprivation of property[,]” and so the “controlling inquiry is solely whether the state is in a position to provide for pre[- ]deprivation process.” Id. at 534 (emphasis added). In addressing the feasibility of providing pre-deprivation process, Hudson determined it was “of no consequence” (continued…)

[J-32-2023] - 42 As there were no issues raised regarding the feasibly of providing pre-deprivation

process for Act 84 deductions made pursuant to the DOC’s Act 84 policy, and because

it was immaterial to its analysis whether any post-deprivation remedy was available, the

Bundy Court next considered whether legitimate state interests would be burdened by

implementation of a pre-deprivation process. We deemed any such concerns to be

speculative at best, reasoning that, in balancing an inmate’s interests against

institutional concerns,39 “the provision of notice and a meaningful (if informal) means to

challenge the amount of the debt, assert an exemption, or otherwise raise an objection

to the deduction scheme, seems unlikely to impact upon these institutional goals.” Id. at

558. And, “[j]ust as important,” providing pre-deprivation process “can potentially avoid

erroneous deprivations before they occur[.]” Id. Thus, Bundy agreed with Montañez

that the DOC “must, prior to the first deduction: (a) inform the inmate of the total amount

of his financial liability as reflected in his sentencing order, as well as the Department’s

policy concerning the rate at which funds will be deducted from his account and which

funds are subject to deduction; and (b) give the inmate a reasonable opportunity to

object to the application of the Department’s policy to his account.” Id. at 558–59.

Bundy added that this pre-deprivation procedure would help minimize errors in the

(…continued) whether “an individual employee himself is able to foresee a deprivation[,]” finding that the “state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct.” Id. at 533-34. Thus, we take from Hudson, as we did in Bundy, that an inquiry into the feasibility of pre-deprivation process is focused not on the availability (or adequacy) of a post-deprivation process, or the specific intentions of individual prison officials, but on the institution’s ability to provide pre-deprivation process. 39 Bundy identified the relevant institutional concerns as “securing the prison’s physical

plant, maintaining order, safety, and discipline, and providing for prisoners’ rehabilitative needs.” Bundy, 184 at 558. Certainly, the DOC also has an interest in implementing Act 84 fairly and efficiently.

[J-32-2023] - 43 DOC’s “application of its Act 84 deduction policy without significantly impeding its ability

to carry out essential functions” in accordance with Mathews. Id. at 559.

Bundy concluded that the Commonwealth Court erred in sustaining preliminary

objections, in part, because Bundy “was not given pre-deprivation notice concerning the

amount he owed or an opportunity to object.” Id. Critically for purposes of our decision

today, Bundy did not make its decision contingent upon the prisoner’s proof of a

“concrete harm[.]” Id. To the contrary, Bundy stated that “if a procedural due process

violation is demonstrated, nominal damages may be warranted[.]”40 We further

recognized that that Bundy had additionally “asked for declaratory and injunctive relief”

in any event. Id. Thus, Bundy concluded that the law did “not say with certainty that no

relief is available[,]” and it therefore reversed the order sustaining preliminary

objections. Id. at 559-60.

Only two years later, in Johnson, we again confronted the due process

implications of Act 84. Convicted in March of 2013, Johnson was ordered to pay $1,166

for costs and contributions to the Crime Victims’ Compensation Fund. Johnson, 238

A.3d at 1175-76. In June of 2013, the DOC made its first Act 84 deduction from

Johnson’s prison account, and Johnson unsuccessfully challenged the legality of that

deduction through the DOC’s grievance process in July of 2013. Id. at 1176. As

discussed above, Montañez was issued the following year, and Bundy followed in 2018.

Soon after Bundy was issued, Johnson filed another grievance, seeking the return of all

his Act 84 deductions (then totaling $860) as recompence because he had been denied

pre-deprivation process before the first deduction was made. Id. at 1176-77. The DOC

40 Bundy specifically cited the United States Supreme Court’s decision in Carey v. Piphus.

[J-32-2023] - 44 denied this request for relief, reasoning that Johnson failed to demonstrate any error

relative to the DOC’s Act 84 policy, but suspended his Act 84 deductions for three

weeks to provide him with the opportunity to provide evidence of any such error. Id. at

1177. Instead, Johnson filed an administrative appeal, arguing that the DOC’s post-

deprivation remedy “was insufficient in light of Bundy[,]” which the DOC denied. Id.

Johnson then filed a petition for review in the Commonwealth Court stating a

replevin claim, seeking to recover the $860 plus interest. Id. He also alleged a due

process violation due to the DOC’s failure to afford him an ability-to-pay hearing based

on an alleged change in circumstances, premised on language in Bundy suggesting the

potential viability of such a claim. Id. In an amended Petition, Johnson added a

negligence claim pertaining to the DOC’s general failure to afford him pre-deprivation

process before making Act 84 deductions and for misinforming him of the legality of

those deductions in response to his original grievance.41

In advancing its preliminary objections in the nature of demurrer, the DOC

presented a variety of challenges to Johnson’s negligence claim and maintained that,

under Buck, it had no obligation to provide an ability-to-pay hearing. The

Commonwealth Court sustained the DOC’s preliminary objections. Pertinent here, the

Commonwealth Court rejected Johnson’s due process claim because that claim

ostensibly accrued when the DOC “made its first Act 84 deduction from Appellant’s

41 “In terms of relief, [he] again asked for a refund of the monies the [DOC] had withdrawn from his account, together with interest, fees, and nominal damages.” Johnson, 238 A.3d at 1178.

[J-32-2023] - 45 account in 2013, with the result that the two-year statute of limitations had expired by

the time Appellant filed his petition for review in 2018.” Id. at 1179.42

We reversed the Commonwealth Court’s order sustaining the DOC’s preliminary

objections with respect to Johnson’s due process claim.43 This Court first recognized

that Johnson and similarly-situated inmates were “placed in a difficult position as their

first Act 84 deduction occurred before the holdings in Bundy and Montañez were

announced[,]” and as such, “could not have relied on those decisions as a basis to

demand pre-deprivation procedural safeguards” but nonetheless “may have had

grounds such as those outlined in Bundy to challenge the validity of the” DOC’s Act 84

policy. Id. at 1182. However, citing Bundy, the Johnson Court recognized that a

meaningful post-deprivation remedy can satisfy the requirements of procedural due

process when a pre-deprivation process is not feasible. Id. Consequently, Johnson

held that that aspect of Bundy applies to inmates whose accounts were subject to Act 84 deductions without the benefit of pre- deprivation safeguards. Thus, due process requires that the [DOC], in response to an administrative grievance which accurately recites that no Bundy process was afforded prior to the first Act 84 deduction, must give the grievant notice of the items required by Bundy and a reasonable opportunity to explain why the past and/or intended deductions should not take place notwithstanding the dictates of Act 84. Any meritorious challenge along these lines would then implicate

42 In Morgalo v. Gorniak, 134 A.3d 1139, 1147-48 (Pa. Commw. 2016), the Commonwealth Court held that the two-year statute of limitations provided in Section 5524(6) of the Judicial Code applies to Act 84 deductions. See 42 Pa.C.S. § 5524(6) (setting a two-year statute of limitations for an “action against any officer of any government unit for the nonpayment of money or the nondelivery of property collected upon on execution or otherwise in his possession”). 43 The Johnson Court affirmed with respect to the Commonwealth’s Court’s dismissal of

Johnson’s negligence claim.

[J-32-2023] - 46 the substantive remedy of restoring the prisoner’s wrongly- deducted funds to his or her account.

Id. at 1182-83. In a footnote, Johnson clarified that “for a challenge to be meritorious,

it is not enough that pre-deprivation procedures were not afforded to the grievant. He

must also identify some substantive basis to conclude the Act 84 deductions were, or

would be, contrary to law.” Id. at 1183 n.10.

Applying that standard, this Court held that that the DOC’s suspension of

deductions to permit Johnson to compile documentation to challenge the DOC’s Act 84

deduction policy appeared consistent with the due process mandate that an individual

be afforded the opportunity to be heard at a meaningful time in a meaningful manner,

but the Court was concerned “whether all of the information contemplated by Bundy and

Montañez was given to Appellant when the deductions were temporarily suspended”

and remanded “for further factual development.” Id. at 1183. The Court specified that

the DOC was required to notify an inmate of 1) the DOC’s Act 84 policy; 2) the “total

financial obligation to the government;” 3) “the rate at which funds will be deducted;”

and 4) “the identity of the funds subject to withdrawal.” Id.

Finally, the Johnson Court considered if Johnson was entitled to an

administrative ability-to-pay hearing before the DOC. Id. The Court provided multiple

justifications for rejecting that claim. First, Johnson neglected to allege a change in

circumstances between sentencing and the first Act 84 deduction. Id. at 1184. Second,

Johnson did not allege that an inability to pay would impact either his ability to litigate

his pending PCRA petition, or that it would otherwise carry a risk of prolonged

confinement or supervision. Id. In any event, Johnson stated that any impact on his

PCRA petition had been rendered moot because the matter has “been litigated to

completion[.]” Id.

[J-32-2023] - 47 B. Was Washington entitled to notice and an opportunity to be heard before the DOC made deductions from his inmate account at a higher rate authorized by the amendment to Act 84?

Washington maintains that he was entitled to notice and an opportunity to be

heard when the DOC increased the rate of Act 84 deductions from his prison account

from 20% to 25%. The Commonwealth Court acknowledged the due process rights

articulated under Bundy and Johnson but distinguished the instant matter on the

grounds that it first articulated in Beavers. For the reasons that follow, we reject each of

the Commonwealth Court’s various theories supporting its decision as endorsed by the

DOC and, instead, agree with Washington that the change to the DOC’s Act 84 policy

required additional pre-deprivation notice and an opportunity to be heard before the

increased rate was applied.

1. Legislative Notice Rationale

a. In Beavers, the Commonwealth Court found that notice of the new rate

had already been provided because “inmates, like all citizens, are presumed to know

the laws of this Commonwealth, including … the current language of Act 84,” invoking

the ancient maxim that ignorance of the law is no excuse. Beavers, 2021 WL 5832128

at *4.44 This theory starts from multiple faulty premises. First, Washington did not

challenge the constitutionality of Act 84 (as amended) on due process grounds.

Second, Washington’s challenge is to the DOC’s failure to afford him notice and an

opportunity to be heard in response to its new Act 84 policy. The 2019 amendment to

Act 84 provides that the DOC “shall develop guidelines relating to its responsibilities” for

deductions made pursuant to Act 84.” 42 Pa.C.S. § 9728(b)(5)(iv). Act 84 authorized

44 The lower court did not explicitly rely on this rationale, but it did rely on Beavers generally. Accordingly, we address it.

[J-32-2023] - 48 the DOC to implement the 25% minimum deduction rate and Act 84 and the DOC’s Act

84 policies are distinct governmental acts. Third, for the reasons discussed infra, the

Current DOC Policy demonstrates that the two are in fact distinct because the DOC acts

with discretion in implementing Act 84. Thus, the legislative amendment to Act 84 could

not have fully apprised Washington of the precise nature of and manner in which the

government would take his property.

b. No less important, however, is that Beavers’ rationale is at odds with our

Act 84 precedents. If inmates are deemed to be fully on notice of the DOC’s Act 84

deduction policies at the time Act 84 became effective, the notice requirements for such

deductions as set forth in Montañez, Bundy, and Johnson would be rendered moot.

Our rejection of this legislative-notice rationale is driven by our decision in Bundy.

In Bundy, the DOC argued that we should follow Buck instead of Montañez, since the former represents binding precedent from this Court, whereas the latter is merely instructive. In fact, Buck is controlling as to some aspects of the question before us. Buck stated that, because [Act 84] went into effect before sentencing occurred, the defendant had adequate notice of the Department’s authority under Act 84 to deduct funds from his account. The same reasoning applies to [Bundy] as he too was sentenced after [Act 84] became effective. Buck additionally established that due process does not require the [DOC] to arrange for a judicial ability-to-pay hearing before making deductions. As the Third Circuit recognized, however, Buck did not deal with whether any sort of administrative pre-deprivation process is constitutionally required before the first deduction is made.

Bundy, 184 A.3d at 558 n.5. Similarly, here, there is no challenge to the legislature’s

power to craft the amendment to Act 84 or the DOC’s authority to implement that

legislative scheme. Our concern, therefore, is not whether Washington was notified of

the contents of the statute, but whether he was adequately notified of critical elements

[J-32-2023] - 49 of the Current DOC Policy implementing the amendment and whether he was afforded

the opportunity to challenge it before his property was garnished at the higher rate.

Moreover, as recognized by the lower court, there “is no dispute that DOC did not

provide notice of the increased deduction.” Washington, 2021 WL 6139806 at *3.

2. Effect of Notice and Opportunity to be Heard Prior to the First (Pre-Amendment) Act

84 Deduction

In both the instant case and in Beavers, there was no question that prior to the

rate change the DOC had satisfied Montañez’s notice requirements in accordance with

Bundy. However, the Beavers court indicated that there was no reason for the DOC to

provide additional notice for such inmates due to the rate change because “an increase

in the rate of the deduction from 20% to 25% did not change the total amount of …

court-ordered fines and costs or change the account from which the deductions are

made[,]” further noting that “the notice prescribed in Bundy” did not “include notice of a

change in Act 84.” Beavers, 2021 WL 5832128, at *4. Likewise, the lower court

determined that the DOC was not obligated to provide additional notice beyond what

was already provided before the first, pre-amendment Act 84 deduction occurred.

Washington, 2021 WL 6139806, at *4.

This rationale is a misapplication of our precedent. While it is true that Bundy did

not specifically prescribe notice of any subsequent changes to Act 84, only the most

superficial reading of that decision could rationalize that an increase to the rate of Act

84 deductions would not require notice. Bundy required notice of “the total amount of

[an inmate’s] financial liability as reflected in his sentencing order, as well as the

Department’s policy concerning the rate at which funds will be deducted from his

account and which funds are subject to deduction[.]” Bundy, 184 A.3d at 558

[J-32-2023] - 50 (emphasis added). Plainly, Bundy did not only require notice of an inmate’s total court-

ordered financial liability, but also notice of the DOC’s policy regarding the rate at which

funds would be deducted.45 A change in the deduction rate strikes at the heart of

Montañez’s notice requirements since the rate of deduction establishes the extent of the

deprivation of property. The rate of the deduction was therefore an essential element of

Bundy’s notice requirements as well. Thus, Beavers incorrectly determined that a

change to the rate of Act 84 deductions did not implicate the procedural due process

concerns at issue in Bundy.

3. Relevancy of the Availability of a Remedy Impacting the Rate of the Deduction from

the Inmate Account

Following its prior decision in Beavers, the Commonwealth Court determined that

no additional process was necessary because the text of Act 84 no longer provides the

DOC with full discretion to set the rate of Act 84 deductions. Washington, 2021 WL

6139806, *4 (“Critically, as recognized in Beavers, the statutory language materially

differs from that in effect when Bundy and Johnson were decided” such that the “current

statute does not afford DOC discretion over setting the amount and effectuating the

deduction. As a consequence, DOC does not have the authority to exercise its

discretion reasonably to discern whether the amount it deducts requires additional due

process through an administrative process.”); accord Beavers, 2021 WL 5832128, at *4

(stating “because the statute requires the Department to deduct a minimum of 25%, it

45 Notably, Bundy addressed the prior version of Act 84, which had no prescribed deduction rate of any sort. Thus, the essence of Bundy’s notice requirement was communication of the DOC’s policy implementing Act 84, not the terms of the act itself. It was the DOC’s policy, therefore, and not the enabling statute, that is the impetus for the procedural due process rights at issue.

[J-32-2023] - 51 could not order a lesser deduction percentage even if it gave Beavers the hearing he

seeks”).

The Commonwealth Court misapprehends our precedent, conflating a

substantive claim regarding the deprivation of an inmate’s property with the related but

distinct procedural due process claim associated with that taking. The right to

procedural due process is absolute. Piphus, 435 U.S. at 266. It “does not depend upon

the merits of a claimant’s substantive assertions, and because of the importance to

organized society that procedural due process be observed, … the denial of procedural

due process should be actionable for nominal damages without proof of actual injury.”

Id. Applying this core principle of procedural due process to Act 84 deductions, this

Court made clear in Bundy that “[e]ven apart from any concrete harm, if a procedural

due process violation is demonstrated, nominal damages may be warranted[,]” noting

that Bundy had also requested “declaratory and injunctive relief.” Bundy, 184 A.3d at

559 (citing Piphus). Thus, even if Washington had no basis to seek substantive relief

from the Act 84 rate increase due to the DOC’s inability to deviate below the 25%

minimum set by the 2019 amendment, he was still entitled to pre-deprivation notice and

an opportunity to be heard.46

Nevertheless, the Commonwealth Court’s rationale that the DOC lacked any

discretion in setting the deduction is not supported by the facts. The text of the 2019

46 The Dissent simply ignores this distinction, myopically focusing on its belief that no

substantive remedy is available. Dissenting Op. at 12 (stating “the majority is knowingly forcing DOC to provide Washington with an administrative remedy that is no remedy at all and encouraging Washington, and other inmates in his situation, to exhaust an administrative remedy that is essentially meaningless”). There is nothing meaningless about vindicating the constitutional right to procedural due process, nor should this Court discourage litigants from preserving that right even if no pot of gold exists at the end of the rainbow. The right to procedural due process protects the path, not the destination.

[J-32-2023] - 52 amendment permits the DOC to exercise at least some discretion, as the legislature did

not mandate a 25% deduction rate across the board, it set a minimum deduction rate of

25%. 42 Pa.C.S. § 9728(b)(5)(i). Consequently, the DOC is clearly afforded discretion

under Act 84 to deviate upwards from the 25% minimum rate as the DOC can apply a

higher rate on a case-by-case basis. Logically, therefore, a decision by the DOC to

apply the minimum rate of 25% is itself discretionary, even if the 2019 amendment set

an absolute floor.

Moreover, the DOC does not treat the amendment to Act 84 as establishing an

absolute floor for deductions from an inmate’s account. By the terms of the Current

DOC Policy issued after the 2019 amendment, the Department retained discretion to

refrain from making Act 84 deductions from inmate accounts at all if their balances do

not exceed ten dollars, a consistent policy since we first noted its existence in Buck.

Buck, 834 A.2d at 700 n.7. Needless to say, a zero-percent deduction rate is a

downward departure from the 25% rate and that departure is based upon an

individualized assessment of an inmate’s financial circumstances. Thus, the DOC’s

application of Act 84 through the Current DOC Policy demonstrates that it operates with

discretion to depart downward from the 25% minimum deduction rate.

For any of the above reasons, we conclude that the Commonwealth Court erred

in determining that no remedies were available based on Washington’s procedural due

process claim.

4. Relevancy of the Absence of a Claim that Errors Occurred in the Deductions from the

Inmate Account

As noted by the Commonwealth Court, Washington’s claims were substantially

the same as those presented in Beavers. The Commonwealth Court in Beavers stated

[J-32-2023] - 53 that “the purpose of the pre-deduction hearing is to prevent erroneous deductions,

Bundy[,] 184 A.3d at 558, and Beavers has not alleged that there were any errors that a

hearing might correct.” Beavers, 2021 WL 5832128, at *4. The court erred by

presuming that the absence of a concrete remedy at the end of the process that is due

is an excuse for denying the right to process itself.47 “In procedural due process claims,

the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or

property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of

such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125

(1990). Moreover, as this Court made clear in Bundy, the controlling inquiry in

procedural due process claims is not whether some form of concrete relief will manifest

at the end of the process that the Constitution requires; rather, “the ‘controlling inquiry’

in this regard is ‘whether the state is in a position to provide for pre-deprivation

process.’” Bundy, 184 A.3d at 557 (quoting Hudson, 468 U.S. at 534).

That “controlling” inquiry is governed by the Mathews Test, as informed by

Montañez, Bundy, and Johnson. Beavers (and by extension the lower court in this

matter due to its reliance on Beavers) did not apply the Mathews Test,48 and instead

focused solely on the potential for a remedy for deprivation of property, rather than on

the DOC’s obligation to provide adequate procedural due process in light of a

substantial change to the DOC’s Act 84 policy. In rare circumstances such as those

47 Or, as the dissenting opinion in Beavers aptly observed, “this sidesteps the injury asserted” because the “issue . . . is the deprivation of due process, the provision of which would allow for the potential development of an argument regarding such errors. Whether there were any statutory errors in the amount of the deductions or the source of the funds are questions for a different body at a different time.” Beavers, 2021 WL 5832128 at *8 (McCullough, J., dissenting). 48 Indeed, the Beavers Majority did not even cite to Mathews.

[J-32-2023] - 54 observed in Tillman and Reynolds, i.e., when pre-deprivation process is not feasible, or

it undermines legitimate institutional concerns, or it involves a truly routine matter of

accounting, then post-deprivation process may be substituted for pre-deprivation

process.

However, neither Tillman nor Reynolds is implicated here. The Commonwealth

Court did not hold, and the DOC has never argued, that it is not feasible to provide

inmates with Bundy-like pre-deprivation process prior to raising Act 84 deduction rates,

nor that such process would conflict with the DOC’s ability to safely and efficiently

manage its prisons. And, unlike Tillman, where the routine calculation was a specific,

daily charge assessed each day for housing costs, Act 84 deductions are far more

complex.49 Thus, the potential for errors is not negligible, much less zero.

Thus, the Commonwealth Court’s focus on an ostensibly low potential for errors

was misguided and largely informed by its misapplication of our precedent.

5. Legislative Act Doctrine

Although it was not a part of the lower court’s rationale for granting the DOC’s

preliminary objections, the DOC argues that Washington was not entitled to any process

at all under the Legislative Act Doctrine, which holds that the requirements of procedural

due process do not extend to legislative acts because the “legislative process provides

49 For instance, Act 84 applies a deduction rate to incoming deposits, which will vary in

both magnitude and frequency for each individual inmate. Furthermore, the DOC has statutory discretion to apply different rates to different inmates, and it exercises discretion under the Current DOC Policy to exempt some individuals based on low balances. Moreover, inmates who have paid off their court-ordered obligations will no longer be subject to Act 84 deductions. Finally, the DOC must remain in constant communication with the clerk of courts in the event that changes to the total court- ordered obligations are made due to litigation or payments made outside of Act 84.

[J-32-2023] - 55 all the due process” that is required. DOC’s Brief at 13-14.50 The Legislative Act

Doctrine stems from the United States Supreme Court decision Bi-Metallic, which must

be understood in contrast to the High Court’s decision a few years earlier in Londoner.

As the Eleventh Circuit carefully explained in 75 Acres, LLC v. Miami-Dade County, 338

F.3d 1288 (11th Cir. 2003), in a pair of cases addressing taxation in Denver, Colorado, the Supreme Court first crystallized the important distinction in procedural due process cases between government conduct that is primarily legislative and conduct that is primarily adjudicative. In the first case, Londoner[,] the Court was called upon to examine whether the Denver city council, acting as a board of equalization, violated due process when it failed to provide a group of landowners with a hearing before assessing a tax for the cost of paving a street that

50 Washington asserts the DOC waived this theory because it was not adequately developed below. Washington’s Reply Brief at 4-5. The DOC did not assert the Legislative Act Doctrine explicitly in its September 31, 2020 preliminary objections; however, the general theory that the DOC lacked discretion to deviate from a legislative mandate was raised in support of its preliminary objections. See Prelim. Obj. at 2 ¶ 15 (“The amendment requires the [DOC] to make monetary deductions of at least 25%.”) (emphasis in original). The DOC first advanced the Legislative Act Doctrine before the Commonwealth Court in the summary of argument section of its brief in support of preliminary objections filed on November 12, 2020. Brief in Support of Preliminary Objections at 6 (“Finally, the [DOC] is bound to the statute and is no longer making a discretionary administrative decision regarding the percentage deduction. ‘It is well settled that procedural due process concerns are implicated only by adjudications, not by state actions that are legislative in character.’ Small v. Horn, 722 A.2d 664, 671 (Pa. 1988).”). In the argument section of the brief in support of preliminary objections, the DOC cited Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951 (9th Cir. 1991), opinion vacated on other grounds, 987 F.2d 662 (9th Cir. 1993). In Sierra Lake, the Ninth Circuit dismissed a procedural due process challenge to a City’s rent control ordinance based on the Legislative Act Doctrine, reasoning that a legislative action can be challenged by a plaintiff “on substantive grounds . . . if the action amounts to a taking,” but that a plaintiff “may not raise a procedural due process challenge to such action” when the action “is legislative in nature” because “due process is satisfied when the legislative body performs its responsibilities in the normal manner prescribed by law.” Sierra Lake, 938 F.2d at 957. We conclude the DOC sufficiently raised the issue before the lower court in this case and, accordingly, we address the issue although, for the reasons discussed below, we do not reach the merits of it.

[J-32-2023] - 56 abutted their property. The Court concluded that due process was violated in such a circumstance because a subordinate body, the city council, had been given “the duty of determining whether, in what amount, and upon whom [the tax] shall be levied, and of making its assessment and apportionment.” [Londoner], 210 U.S. at 385–86[.] Just eight years later, however, in Bi-Metallic[,], the Court was asked to examine an order of the State Board of Equalization which required the local taxing officer in Denver to increase by 40 percent the assessed value of all taxable property in the city. In concluding that the order did not violate due process despite the Board of Equalization’s failure to provide individual taxpayers with an opportunity to be heard, the Bi-Metallic Court drew a distinction between the adjudicative act of the city council in Londoner and the legislative act of the Tax Commission in Bi-Metallic. The public improvement assessment at issue in Londoner concerned “[a] relatively small number of persons,” they were “exceptionally affected,” and “in each case upon individual grounds.” Bi-Metallic, 239 U.S. at 446[.] By contrast, the “across-the-board” valuation increase in Bi- Metallic applied equally to all landowners in Denver, prompting the Court to observe: Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. Id. at 445[.]

[J-32-2023] - 57 75 Acres, 338 F.3d at 1293.51 Accord Small v. Horn, 722 A.2d 664, 671 (Pa. 1998) (“It

is well settled that procedural due process concerns are implicated only by

adjudications, not by state actions that are legislative in character.”).

Pursuant to Bi-Metallic, the DOC maintains that that Washington’s procedural

due process challenge implicates the Legislative Act Doctrine because of the mandatory

minimum 25% deduction rate required by Act 84, distinguishing this case from the “the

concerns recognized by the Third Circuit in Montañez and this Court in Bundy and its

progeny[,]” where no legislation mandated a specific deduction rate from inmate

accounts. DOC’s Brief at 16. We disagree that the Legislative Act Doctrine is

implicated in this case.

The DOC cannot rely on the Legislative Act Doctrine to disregard Bundy’s

procedural due process mandate based on the 2019 amendment to Act 84 when the

DOC does not itself treat that amendment as a general statute that establishes an

absolute minimum 25% deduction rate that applies to all inmates subject to Act 84. As

established above, the Current DOC Policy applies differently to different inmates based

51 In 75 Acres, the Eleventh Circuit considered whether a regulation in the Miami-Dade

County Code was primarily legislative or adjudicative. At-issue was a code provision that required the county manager to impose a building moratorium on a parcel when “the propriety of that property’s zoning classification has been called into question by criminal allegations of bribery or fraud.” 75 Acres, 338 F.3d at 1296. 75 Acres concluded that it was a legislative act at issue, because there was no dispute that the code provision was enacted by a legislative body by a legislative process. Furthermore, the code was not limited in “application solely to 75 Acres’ property. Rather, any property owner in Miami–Dade County would be subjected to a moratorium . . . if his or her property were implicated in zoning fraud.” Id. at 1297. And although the moratorium was triggered by the “State Attorney’s factual determinations and discretionary act” that gave rise to the filing of a criminal complaint, 75 Acres concluded that the “State Attorney’s act of filing a criminal information is best characterized as a legislatively-defined condition precedent that does not transform the imposition of a moratorium . . . from a legislative act to an adjudicative act.” Id. at 1298.

[J-32-2023] - 58 on their individual financial circumstances and court-ordered debt obligations. The DOC

does not simply apply a 25% deduction rate across the board, as it maintains an

exception to the prescribed rate for any inmate account holding ten dollars or less.52

Thus, the Legislative Act Doctrine is inapplicable in the circumstances of this case. 53

52 See Current DOC Policy §§ 2(B)(4)(a), 3(A)(2)(e)(1), 3(A)(2)(e)(2), 3(C)(2)(b)(1), and

3(F)(1-6). 53 The Dissent contends that the “DOC’s promulgation and implementation of its Act 84

policy constitutes a legislative action, not an adjudicatory action, and, therefore, Washington is not entitled to any process in addition to that which he already received prior to DOC’s initial Act 84 deduction from his inmate account[,]” relying on Small (examining DOC policy banning inmates’ possession of street clothing due to its use in an escape) and Sutton v. Bickell, 220 A.3d 1027 (Pa. 2019) (examining DOC policy banning inmates’ possession of Timberland-style boots after their use in a murder of a prison guard). Dissenting Op. at 7. In both cases this Court applied the Legislative Act Doctrine (with scant analysis) to pro se procedural due process challenges to new DOC policies that were prompted by security concerns. Neither case involved a policy implementing a statutory mandate, both involved the application of alternative grounds for finding no due process violation, and the DOC does not discuss either case in its argument.

The Dissent would apply the Legislative Act Doctrine because the Current DOC Policy “applies equally to all inmates,” and because the DOC “has no discretion in its application” of the policy “to those inmates[.]” Dissenting Op. at 7. Neither proposition is true. As discussed repeatedly above, the Current DOC Policy plainly does not apply “equally” to “all inmates,” nor does the DOC lack discretion in its application. The policy applies differently to inmates based on whether they have any Act 84 obligations at all, and when they do, individualized assessments are made by the DOC to determine the amount of money contained in individual inmate accounts and the amounts of qualifying deposits in order to determine the amount of the periodic Act 84 deduction and the potential applicability of the ten-dollar exception. Inmates who do pay at the 25% rate are not “equally” affected either, see supra footnote 49. As such, the Current DOC policy is distinguishable from the Tillman policy which assessed a truly equal daily rate of ten dollars on each inmate without exception. Furthermore, the DOC clearly exercises discretion by applying the ten-dollar exception whether Act 84 permits it or not, a question the Dissent admits is not before this Court today. Dissenting Op. at 7 n.4. Notably, neither party disputes the DOC’s authority to apply the ten-dollar exception, a policy the legislature was aware of as it predated the amendment to Act 84.

(continued…)

[J-32-2023] - 59 (…continued) Moreover, a reading of Bi-Metallic demonstrates that the Legislative Act Doctrine was never intended to apply in these circumstances. The Bi-Metallic Court expressly justified bypassing individual procedural due process rights only where two conditions were present. The first condition exists when the burden of litigating individual procedural due process claims, involving universal or near-universal government policies, would effectively seize the machinery of government. See Bi-Metallic, 239 U.S. at 445 (holding that there “must be a limit to individual argument … if government is to go on” where the government policy affects the property of persons who all “stand alike” or where “are all equally concerned”). The second condition was the presence of a backstop political remedy to address the due process concerns stemming from the government taking. Id. (“Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”). Neither condition is present here.

As to the first condition, the Current DOC Policy is not a government policy of universal or near-universal application. Although issued by a statewide agency, the Current DOC Policy only affects a tiny subset of the population who are incarcerated, subject to Act 84 obligations, and who have more than ten dollars in their inmate accounts. The Dissent vacillates between describing the Current DOC Policy as one that “applies equally to all inmates,” id. at 7, and one that affects “all inmates under DOC’s supervision who have outstanding court-ordered financial obligations[,]” id. at 8. Only the latter description is accurate. The classes defined by the Dissent, although irreconcilable, are nonetheless profoundly dissimilar to the near-universal class of individuals targeted by the taxing regulation in Bi-Metallic that affected all taxable property in Denver. But even if the class of affected persons here is sufficiently broad for purposes of the Legislative Act Doctrine, there has been no claim by the DOC that providing notice of the 5% rate increase to affected inmates, and providing them with the opportunity to engage in an extant grievance process, would in any way inhibit the DOC’s operations, much less inhibit the Commonwealth’s ability to govern more generally. The DOC has not made any such claim, most likely because the infrastructure is already in place to provide both notice and an opportunity to be heard under the undisputed facts of this case, as inmates are already periodically notified of their Act 84 obligations, and a grievance process already exists to address prisoner concerns. Thus, the Dissent’s bald declaration that it would be “a waste of [the] DOC’s resources” to adhere to the bare minimum requirements of procedural due process is far more a reflection of its illusory and unsubstantiated policy concerns than it is a statement about the applicability of the Legislative Act Doctrine as a matter of law.

As to the second condition, we can say for certain that there is no equivalent political remedy to that contemplated in Bi-Metallic. DOC inmates cannot throw the policy makers out of office as a substitute for the curtailing of their procedural due process rights at an individual level. Most if not all inmates governed by the Current DOC Policy (continued…)

[J-32-2023] - 60 6. Mathews Test

Mathews provides for a three-part inquiry, starting from a presumption that pre-

deprivation notice and an opportunity to be heard is required.54 Under this test, we

consider: 1) the private interest affected; 2) the risk of an erroneous deprivation and the

value of additional or substitute safeguards; and 3) the state’s interest, including the

burdens the additional or substitute procedural requirements would impose on the state.

Bundy, 184 A.3d at 557 (citing Mathews, 424 U.S. at 335). This Court applied the

Mathews test in Bundy with regard to the DOC’s policy implementing Act 84, concluding

that “the Department must, prior to the first deduction: (a) inform the inmate of the

total amount of his financial liability as reflected in his sentencing order, as well as the

Department’s policy concerning the rate at which funds will be deducted from his

account and which funds are subject to deduction; and (b) give the inmate a

reasonable opportunity to object to the application of the Department’s policy to his

account.” Bundy, 184 A.3d at 558-59. The circumstances considered in the application

of the Mathews Test here are no different from those considered in Bundy. Thus, there

is no reason to deviate from Bundy’s mandate here.

Accordingly, for all the reasons stated above, we agree with Washington and

hold that an increase to the Act 84 deduction rate triggers Bundy’s procedural due

(…continued) have been disenfranchised formally (in the case of felons) and/or practically (in the case of inmates serving time in state prison exclusively for misdemeanor offenses). The DOC spins the ostensible legality of this mass disenfranchisement as a workaround rather than as a fatal flaw to its invocation of the Legislative Act Doctrine. However, the legality of the disenfranchisement cannot cure the absence of political remedy. 54 The Supreme Court clearly explained in Zinermon that in applying the Mathews Test,

the general rule is that pre-deprivation process is required before a deprivation of property occurs, and that it is only in exceptional circumstances when a post-deprivation remedy is appropriate. See Zinermon, 494 U.S. at 127-28.

[J-32-2023] - 61 process requirements, and that the Commonwealth Court erred when it sustained the

DOC’s preliminary objections by concluding otherwise.

IV. Conclusion

Fairness, in the context of procedural due process, means having the right to

notice and the opportunity to be heard before property is taken by the government.

Only in exceptional circumstances do these principles of procedural due process permit

the substitution of a post-deprivation process for the default requirement. There was

nothing exceptional with respect to the amendment to Act 84 to justify the DOC’s failure

to afford pre-deprivation notice and an opportunity to be heard in the circumstances of

this case. And while fairness in the process does not guarantee substantive relief for

the taking, the unavailability of substantive relief at the end of that process is not an

exception to the default rule. To deny the right to procedural due process based on the

assumption that relief is unavailable is to deny the right to process itself, by subsuming

it within the right to property. These rights are distinct and call for different remedies

when they are transgressed by government action.

In sustaining the DOC’s preliminary objections, the Commonwealth Court

condoned the DOC’s deprivation of Washington’s right to pre-deprivation process when

it increased the rate of his Act 84 deductions. Washington may not ultimately be

entitled to a return of the additional funds under any theory of relief, but he has right to

make his case before the taking occurs. He requested both a hearing and injunctive

relief, both of which were in the Commonwealth Court’s power to provide. Accordingly,

we conclude the Commonwealth Court erred in granting preliminary objections because

it is not certain that no relief is available for the violation of Washington’s right to

[J-32-2023] - 62 procedural due process.55 We therefore reverse the order sustaining preliminary

objections and remand for further proceedings consistent with this opinion.

Chief Justice Todd and Justice Wecht join the opinion. Justice Dougherty joins

the opinion except for Section III.B.1.b and the last paragraph of footnote 53.

Justice Dougherty files a concurring opinion.

Justice Brobson files a dissenting opinion in which Justice Mundy joins.

55 In Bundy, we recognized the availability of three remedies for a violation of procedural

due process in the circumstances presented here: 1) a post-deprivation hearing; 2) an injunction prohibiting future account deductions pending the outcome of the post- deprivation hearing; and 3) the award of nominal damages. Bundy, 184 A.3d at 559.

[J-32-2023] - 63