[J-32-2023] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
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 :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: December 19, 2023
I join much of the majority opinion, 1 and I fully join its disposition, but respectfully,
I take a slightly different position on the extent to which legislative notice is provided by
the amendment to Act 84. As the majority aptly explains, the prior version of Act 84 did
not specify a rate at which inmate funds were to be deducted to collect restitution and
other court-ordered obligations or costs. 2 Consistent with Act 84, the Department of
1 I join the majority opinion except for Section III.B.1.b and the last paragraph of footnote
53.
2 Prior to amendment, the statute provided:
The county correctional facility to which the offender has been sentenced
or the Department of Corrections shall be authorized to make monetary
deductions from inmate personal accounts for the purpose of collecting
restitution or any other court-ordered obligation or costs imposed under
section 9721(c.1). Any amount deducted shall be transmitted by the
Department of Corrections or the county correctional facility to the probation
department of the county or other agent designated by the county
(continued…)
Corrections (“DOC”) developed policy statement DC-ADM-005, which provided DOC
would deduct 20% of deposits into inmates’ accounts as long as they had a minimum
balance of $10.
Importantly, most of the relevant Act 84 precedent was decided while the old
statute and policy were in place. 3 First, in Buck v. Beard, 879 A.2d 157 (Pa. 2005), while
we acknowledged prisoners have a property interest in their inmate accounts and are
entitled to due process for deprivations of that money, we held that due process did not
require an additional judicial hearing to determine the inmate’s ability to pay before
making Act 84 deductions. See Buck, 879 A.2d at 160-61. Notably, we explained it was
“significant that Section 9728(b)(5) became effective two years prior to imposition of
[a]ppellant’s sentence[, and t]herefore, at the time of his sentencing he was on notice of
the Department’s statutory authority to deduct funds from his account.” Id. at 160.
Almost ten years later, the U.S. Court of Appeals for the Third Circuit addressed
procedural due process challenges to Act 84 deductions in Montañez v. DOC, 773 F.3d
472 (3d Cir. 2014). The court preliminarily explained state prisoners have a property
interest in the funds in their inmate accounts, and the requisite procedural due process is
to be measured according to the test laid out in Mathews v. Eldridge, 424 U.S. 319 (1976).
Under that test, a court is to weigh:
(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[,”]
commissioners of the county with the approval of the president judge of the
county in which the offender was convicted. The Department of Corrections
shall develop guidelines relating to its responsibilities under this paragraph.
42 Pa.C.S. §9728(b)(5) (2010), amended by 42 Pa.C.S. §9728(b)(5)(i) (2019).
3 I briefly touch on these cases to highlight certain points important to my analysis. For a
fuller discussion of these cases, I defer to the majority’s thorough recitation. See Majority
Opinion at 33-47.
[J-32-2023] [MO: Donohue, J.] - 2
and (3) the governmental interest, “including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirements would entail.”
Montañez, 773 F.3d at 483, quoting Mathews, 424 U.S. at 335.
After finding the benefits of providing process outweighed any government
interests or burdens of administering process for purposes of the Mathews analysis, the
Third Circuit held some pre-deprivation process was required. See id. at 484-85. The
court then agreed with this Court’s Buck decision that “Pennsylvania need not provide an
additional judicial hearing for every inmate to determine ability to pay before making
deductions[.]” Id. at 485. It held, however, “the existence of a general statutory provision
and implementing regulations providing the DOC with authority to collect funds from
inmates’ accounts does not satisfy the Commonwealth’s obligation to provide prior notice
and an opportunity to be heard to inmates regarding deductions from inmate accounts.”
Id. at 486 (emphasis added). Rather, “[a]t a minimum, federal due process requires
inmates to be informed of the terms of the DOC Policy and the amount of their total
monetary liability to the Commonwealth.” Id. Specifically, the court held, “DOC must
disclose to each inmate before the first deduction: the total amount the DOC understands
the inmate to owe pursuant to the inmate’s sentence; the rate at which funds will be
deducted from the inmate’s account; and which funds are subject to deduction.” Id.
(emphasis added). It reiterated the process could be relatively informal and did not
require a separate “judicial-like hearing,” but instead, noted “DOC could provide inmates
with an informal opportunity to supply written objections to prison administrators prior to
the first deduction.” Id.
A few years later, this Court addressed a similar procedural due process challenge
to Act 84 deductions in Bundy v. Wetzel, 184 A.3d 551 (Pa. 2018). In Bundy, we
explained due process is a flexible concept under the Mathews balancing test. See 184
A.3d at 557. We identified a “general preference that procedural safeguards apply in the
[J-32-2023] [MO: Donohue, J.] - 3
pre-deprivation timeframe[,]” and that the “controlling inquiry” is “whether the state is in a
position to provide for pre-deprivation process.” Id., quoting Hudson v. Palmer, 468 U.S.
517, 534 (1984). We then adopted the Third Circuit’s holding that “to comply with due
process, [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 [DOC’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 [DOC’s] policy to his account.” Id. at 558-59 (emphasis added). We
reasoned the requirements outlined in Montañez would “help protect against errors in
[DOC’s] application of its Act 84 deduction policy without significantly impeding its ability
to carry out essential functions.” Id. at 559. Thus, we held such process was due under
Mathews. See id.
In 2019, the year after Bundy was decided, the Act 84 deduction statute was
amended. It now provides:
(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.
...
(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) (2019) (emphasis added). Significantly, unlike the prior version
of Act 84 in effect when Bundy and Montañez were decided, Act 84 now provides a
minimum deduction rate rather than providing DOC absolute discretion to set the rate.
[J-32-2023] [MO: Donohue, J.] - 4
The following year, the Court reaffirmed the due process requirements set out in
Bundy and Montañez in Johnson v. Wetzel, 238 A.3d 1172 (Pa. 2020). In Johnson, we
held an inmate subject to his first Act 84 deduction before Bundy and Montañez were
decided was entitled to post-deprivation process conforming to the requirements outlined
in those cases. See 238 A.3d at 1182 (“when pre-deprivation process is not feasible —
meaning that the state is not in a position to provide it — ‘the availability of a meaningful
post-deprivation remedy satisfies due process’”), quoting Bundy, 184 A.3d at 557. But
notably, our Johnson decision did not mention the amendment to Act 84 or its 25%
minimum deduction rate.
In the present case, the majority rejects the argument Washington received notice
of the rate of deduction because the statute itself provided “[l]egislative [n]otice” by setting
the 25% minimum deduction rate, as citizens are presumed to know the laws of the
Commonwealth. Majority Opinion at 48-50. The majority disposes of this argument on a
few grounds with which I agree. 4 I respectfully disagree, however, with the majority’s
reasoning the legislative notice rationale “is at odds with our Act 84 precedents[, and i]f
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.” Id. at 49.
Relying on Bundy, the majority explains that although Buck held that because Act
84 “went into effect before sentencing occurred, the defendant had adequate notice of
[DOC’s] authority under Act 84 to deduct funds from his account[,]” “Buck did not deal
4 See Majority Opinion at 48-49 (explaining (1) Washington did not challenge the
constitutionality of the amended Act 84 on due process grounds; (2) his challenge is to
DOC’s failure to provide notice and an opportunity to be heard in response to DOC’s new
Act 84 policy, which is a distinct governmental act from the statutory amendment; and (3)
DOC’s policy demonstrates they are in fact distinct governmental acts because DOC acts
with discretion in implementing Act 84).
[J-32-2023] [MO: Donohue, J.] - 5
with whether any sort of administrative pre-deprivation process is constitutionally required
before the first deduction is made.” Id. at 49, quoting Bundy, 184 A.3d at 558 n.5.
Similarly here, the majority reasons, Washington does not challenge the legislature’s
power to enact the Act 84 amendment or DOC’s authority to implement the legislative
scheme, and thus, our concern “is not whether Washington was notified of the contents
of the statute, but whether he was adequately notified of critical elements 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.” Id. at 49-50; see
also id. at 51 n.45 (“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.”) (emphasis in original).
I agree with the majority that in this case, the current version of 42 Pa.C.S.
§9728(b)(5) does not provide requisite notice of the rate of deduction as required by
Montañez, Bundy, and Johnson. But in my view, those cases do not categorically reject
a legislative notice rationale. 5 Under a different legislative scheme — particularly, if the
5 It is well established we presume people have knowledge and are on notice of the law.
Nearly two-hundred years ago, this Court explained:
It is an unquestionable principle, which applies to civil as well as criminal
cases, that ignorance of law will not furnish an excuse for any person, either
for a breach or omission of duty. Ignorantia legis neminem excusat is a
maxim which is as much respected in equity as in law. This doctrine is
among the settled elements of the law; for every man, at his peril, is bound
to take notice of what the law is, as well the law made by statute as the
common law[.] The presumption is, that every man is acquainted with his
own rights, provided he has a reasonable opportunity to know them.
Rankin v. Mortimere, 7 Watts 372, 374 (Pa. 1838) (citation omitted); see also 31A CORPUS
JURIS SECUNDUM EVIDENCE §221 (2021) (“All persons are presumed to know the general
(continued…)
[J-32-2023] [MO: Donohue, J.] - 6
statute set a mandatory deduction rate without any allowance for DOC to exercise
discretion — the statute itself could provide notice of the rate of deduction. See Johnson,
238 A.3d at 1182 n.9 (“[I]nmates are not assumed to be ignorant of the law particularly
as it relates to the satisfaction of monetary obligations imposed at sentencing.”); Buck,
879 A.2d at 160 (“With respect to the due process claim, it is significant that Section
9728(b)(5) became effective two years prior to imposition of [a]ppellant’s sentence.
Therefore, at the time of his sentencing he was on notice of [DOC’s] statutory authority to
deduct funds from his account.”). Those cases framed notice of the rate of deduction as
requiring notice of DOC’s policy because, under both the prior and current versions of
Section 9728(b)(5), DOC had discretion to set that rate through its policy. But I disagree
with the majority that those cases necessarily require a focus on whether notice of DOC’s
policy was provided to, in effect, give notice of the rate of deduction; instead, the critical
inquiry is whether the inmate had notice of the rate of deduction itself.
If the statute adequately provides notice of the rate of deduction, it satisfies that
item as required by Montañez, Bundy, and Johnson. Here however, as the majority ably
explains, that is not the case. The majority is undoubtedly correct the plain text of the
2019 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%.” Majority Opinion at 53 (emphasis in original). I agree “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[,]” and that logically, DOC’s decision to “apply
the minimum rate of 25% is itself discretionary, even if the 2019 amendment set an
absolute floor.” Id. Additionally, as the majority explains, DOC may also exercise
public laws of the state or country where they reside, and the legal effect of their acts.
Persons are likewise presumed to know that laws are subject to change or repeal, and to
know of changes made.”).
[J-32-2023] [MO: Donohue, J.] - 7
discretion to make downward departures from the 25% rate by making no deductions
from inmate accounts with less than $10. See id. at 53. DOC’s own policy therefore
“demonstrates that it operates with discretion[.]” Id. 6 Thus, while I believe a statute
setting the rate of deduction could satisfy the notice requirement in Montañez, Bundy,
and Johnson, I agree with the majority the current version of Section 9728(b)(5) does not
provide such notice.
For similar reasons, I agree with the majority the Legislative Act Doctrine does not
apply to obviate the need for due process in this case. Briefly, the Legislative Act Doctrine
originated in a pair of United States Supreme Court cases, Londoner v. City and County
of Denver, 210 U.S. 373 (1908), and Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U.S. 441 (1915). In Londoner, the High Court held Denver’s city council
violated due process when it acted as a board of equalization to assess a tax against a
certain group of taxpayers without first affording them the opportunity for a hearing. See
Londoner, 210 U.S. at 384-86. It explained that while the Constitution imposes few
restrictions on the states when it comes to the collection of property taxes, “where the
legislature of a state, instead of fixing the tax itself, commits to some subordinate body
the duty of determining whether, in what amount, and upon whom it shall be levied, and
6 The dissent’s point “question[ing] whether DOC even has the authority to [exclude
inmates with a balance less than $10 from deductions] given that Act 84, as amended,
does not permit DOC to deviate below the minimum 25% deduction rate” is well taken.
Dissenting Opinion at 8 n.5. But, interpreting Section 9728(b)(5) as not allowing DOC to
refrain from deducting from accounts with such a low balance could potentially open the
statute up to other legal infirmities. See Montañez, 773 F.3d at 486 (“[W]e find nothing
substantively unreasonable about the DOC’s refusal to provide exceptions to its across-
the-board 20% rate of deduction, in light of the fact that the DOC will not make deductions
when an inmate’s account falls below a certain minimum.”). Even the dissent
acknowledges this issue is not before us. See Dissenting Opinion at 8 n.5. In any case,
for the reasons explained by the majority, Section 9728(b)(5) gives DOC discretion
regardless of the validity of the $10 account minimum. Plus, notwithstanding Section
9728(b)(5), DOC’s policy setting a $10 account minimum shows that DOC is in fact
exercising discretion to go below the 25% rate.
[J-32-2023] [MO: Donohue, J.] - 8
of making its assessment and apportionment, due process of law requires that, at some
stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall
have an opportunity to be heard, of which he must have notice, either personal, by
publication, or by a law fixing the time and place of the hearing.” Id. at 385-86.
Later, in Bi-Metallic, the Supreme Court considered an order of the Colorado State
Board of Equalization and the Colorado Tax Commission that increased the valuation of
all taxable property in Denver by 40%. See Bi-Metallic, 239 U.S. at 443. The plaintiff
challenged the order, arguing it was given no opportunity to be heard and that its property
would be taken without due process. See id. at 444. The Supreme Court held due
process did not require individual taxpayers be afforded an opportunity to be heard. See
id. at 445. It departed from Londoner, where the government action was adjudicatory in
nature, 7 explaining in the context of governmental acts that are legislative in nature,
[w]here 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. Importantly, in reaching its determination, the Court noted it “assume[d] that the
proper state machinery ha[d] been used” to effectuate the order. Id.
Considering this Londoner/Bi-Metallic dichotomy, I agree with the majority that
amended Act 84 does not call for application of the Legislative Act Doctrine. Again, the
plain text of Section 9728(b)(5) itself gives DOC discretion in setting rates of deduction,
7 The Bi-Metallic Court distinguished Londoner on the facts that there, “a local board had
to determine ‘whether, in what amount, and upon whom’ a tax for paving a street should
be levied for special benefits[, and a] relatively small number of persons was concerned,
who were exceptionally affected, in each case upon individual grounds[.]” Bi-Metallic,
239 U.S. at 446.
[J-32-2023] [MO: Donohue, J.] - 9
at least allowing DOC to deduct at a rate higher than 25%. See 42 Pa.C.S. §9728(b)(5).
But also, as the majority explains, “[t]he 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.” Majority Opinion at 58. Because Section 9728(b)(5) grants discretion to DOC
to adjudicate the rates and amounts to be paid by the inmates, the statute presents a
scenario much more akin to Londoner than Bi-Metallic. See Londoner, 210 U.S. at 385
(“where the legislature of a state, instead of fixing the tax itself, commits to some
subordinate body the duty of determining whether, in what amount, and upon whom it
shall be levied, and of making its assessment and apportionment, due process of law
requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed,
the taxpayer shall have an opportunity to be heard, of which he must have notice”).
Indeed, even the dissenting opinion does not argue Section 9728(b)(5) itself
eliminates the need for due process pursuant to the Legislative Act Doctrine. I respectfully
disagree, however, with the dissenting opinion’s contention that DOC’s “promulgation and
implementation of its Act 84 policy . . . constitutes a legislative action[,]” and therefore,
Washington “is not entitled to any procedural due process in addition to what he already
received prior to DOC’s initial Act 84 deduction from his inmate account.” Dissenting
Opinion at 1 (footnote omitted). In short, I classify the Act 84 deductions as adjudicatory
in nature, even when viewed in light of DOC’s Act 84 policy. Preliminarily, I disagree with
the dissent’s premises “DOC’s Act 84 policy applies equally to all inmates, and DOC has
no discretion in its application to those inmates[,]” and that DOC is not “making any
determination relative to [an] inmate’s individual situation.” Id. at 7. The $10 account
minimum clearly shows DOC’s policy calls for individualized determinations about
[J-32-2023] [MO: Donohue, J.] - 10
inmates’ individual situations: some inmates subject to Act 84 deductions pay 25% while
others pay nothing, based on the amount of money in their accounts.
But perhaps more importantly, I reject the notion a mere statement of DOC’s policy
regarding Act 84 deductions could be considered “legislative” under Pennsylvania law.
Critically, DOC’s Act 84 policy did not go through the channels of notice-and-comment
rulemaking prescribed in the Commonwealth Documents Law, the Regulatory Review
Act, and the Commonwealth Attorneys Act. Certainly, agencies like DOC may develop
their own policies to effectively execute their functions, but the legal force of a particular
rule depends upon how that rule was created. In Northwestern Youth Services, Inc. v.
Department of Public Welfare, 66 A.3d 301 (Pa. 2013), we explained this distinction
between what are (fittingly) referred to as “legislative” and “non-legislative” rules.
We began by acknowledging “[c]ommonwealth agencies have no inherent power
to make law or otherwise bind the public or regulated entities. Rather, an administrative
agency may do so only in the fashion authorized by the General Assembly, which is, as
a general rule, by way of recourse to procedures prescribed in the Commonwealth
Documents Law, the Regulatory Review Act, and the Commonwealth Attorneys Act.” Nw.
Youth Servs., 66 A.3d at 310. We elaborated, however, that when an agency acts under
those laws and “promulgates published regulations through the formal notice, comment,
and review procedures prescribed in those enactments, its resulting pronouncements are
accorded the force of law and are thus denominated ‘legislative rules.’” Id.
By contrast, “[n]on-legislative rules — more recently couched (in decisions and
in the literature) as ‘guidance documents’ — comprise a second category of agency
pronouncements recognized in administrative law practice. These come in an abundance
of formats with a diversity of names, including guidances, manuals, interpretive
memoranda, staff instructions, policy statements, circulars, bulletins, advisories, press
[J-32-2023] [MO: Donohue, J.] - 11
releases and others.” Id. (internal quotation marks and citation omitted) (emphasis
added). We then specifically described “statements of policy” as “agency
pronouncements which are not intended to bind the public and agency personnel, but
rather, merely express an agency’s tentative, future intentions[.]” Id. at 311, citing
Borough of Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741, 743 n.8 (Pa. 1998) (defining
statements of policy as “agency pronouncements that declare its future intentions but
which are applied prospectively on a case-by-case basis and without binding effect”)
(emphasis in original); see also Pa. Hum. Rels. Comm’n v. Norristown Area Sch. Dist.,
374 A.2d 671, 679 (Pa. 1977) (“A general statement of policy . . . does not establish a
‘binding norm’. . . . A policy statement announces the agency’s tentative intentions for the
future. When the agency applies the policy in a particular situation, it must be prepared
to support the policy just as if the policy statement had never been issued.”), quoting Pac.
Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 38 (D.C. Cir. 1974).
Statements of policy are, quite literally, called “non-legislative rules,” and
furthermore, under the Londoner/Bi-Metallic dichotomy, DOC’s Act 84 policy is not
“legislative” because, as described above, such statements of policy are non-binding.
They are mere expressions of how the agency intends to act in the future, typically, by
way of a future regulation or an adjudication. Theoretically, if DOC wanted, it could
change its deduction policy tomorrow. 8 Here, DOC’s Act 84 policy announced its intention
8 I do not suggest DOC’s development or revision of its policies is hasty or not well
considered. In fact, DOC has a policy outlining its thorough process for development and
revision of its policies. See Policy Management System, Policy No. 1.1.1, DEP’T OF
CORRECTIONS (Feb. 16, 2021),
https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/01.01.01%20Policy
%20Management%20System.pdf. But those processes, however thorough, are simply
different from the procedures of notice-and-comment rulemaking (which inherently
protect due process as envisioned in Bi-Metallic), and so the resulting policy is not binding
law. Indeed, DOC Policy 1.1.1 includes a provision explaining when a newly developed
or revised policy should go through the regulatory review process, which specifically
(continued…)
[J-32-2023] [MO: Donohue, J.] - 12
to impose a 25% deduction rate unless the inmate’s account has less than $10 in it. Then,
the subsequent imposition of a deduction rate on the inmate constitutes an adjudication
for that individual. 9
Ultimately, because an agency policy that does not go through the normal notice-
and-comment rulemaking process does not have the force of law and is not binding, see
Nw. Youth Servs., 66 A.3d at 310, it must be effectuated through a subsequent agency
action — in this case, an adjudication against Washington. Under Londoner,
adjudications require due process, and under Montañez and Bundy, that process must
include, inter alia, notice of the rate of deduction and an opportunity to be heard before
the first deduction. Thus, Washington was entitled to such process.
Nevertheless, I appreciate the point made in dissent that this Court held certain
DOC policies were legislative and not subject to procedural due process. See Dissenting
Opinion at 5-7, citing Small v. Horn, 722 A.2d 664 (Pa. 1998) (rejecting challenges to
DOC bulletins announcing a new policy restricting civilian attire after six inmates
escaped), and Sutton v. Bickell, 220 A.3d 1027 (Pa. 2019) (relying on Small to reject a
procedural due process challenge to a DOC policy banning Timberland and Rocky boots
after a prison guard died when an inmate kicked him in the head with boots). But a critical
fact distinguishes those decisions from the present case and the other Act 84 cases: the
policies in Small and Sutton were meant to address safety and prison security.
provides the Bureau of Standards, Audits, Assessments, and Compliance shall, inter alia,
“promulgate them consistent with applicable law.” Id. at 2-11 – 2-12.
9 The dissent relies on language from Small v. Horn, 722 A.2d 664 (Pa. 1998), defining
adjudicative actions as “those that affect one individual or a few individuals[,] and apply
existing laws or regulations to facts that occurred prior to the adjudication.” Dissenting
Opinion at 4, quoting Small, 722 A.2d at 671 n.12. Even under this definition, DOC’s
application of Act 84 (the “existing law[] or regulation[]”) to the inmates based on the prior
month’s deposits into their inmate accounts (“facts that occurred prior”) would be an
adjudication. Small, 722 A.2d at 671 n.12.
[J-32-2023] [MO: Donohue, J.] - 13
Importantly, in Small, before we addressed the inmates’ procedural due process
challenge, we rejected a claim the policy restricting civilian clothing was invalid because
it did not comply with the rulemaking process in the Commonwealth Documents Law and
Regulatory Review Act. In doing so, we held the clothing policy was exempt from the
procedures required in those laws because it fell within a recognized “category of agency
decisions that are inherently committed to the agency’s sound discretion and that cannot
reasonably be subjected to the ‘normal public participation process.’” Small, 722 A.2d at
669, quoting Indep. State Store Union v. Pa. Liquor Control Bd., 432 A.2d 1375,1380 (Pa.
1981) (“These business-type decisions entrusted to the Board are a unique form of
governmental activity which are not amenable to the normal public participation process,
and not subject to the Documents Law.”). We explained why the civilian clothing policy
fell within this category:
Because of the unique nature and requirements of the prison setting,
imprisonment “carries with it the circumscription or loss of many significant
rights . . . to accommodate a myriad of institutional needs . . . chief among
which is internal security.” Hudson v. Palmer, [468 U.S. 517, 524 (1984)].
Accordingly, the Department must enforce reasonable rules of internal
prison management to ensure public safety and prison security. These
rules must be modified as conditions change, different security needs arise,
and experience brings to light weaknesses in current security measures.
Where, as here, the measure has at most an incidental effect on the general
public, it is reasonable to conclude that the Legislature did not intend the
measure to be subjected to the “normal public participation process.”
Id. at 669-70 (footnote omitted) (emphasis added).
But in Bundy, we held the provision of process attendant to Act 84 deductions
would not disrupt those interests described in Small:
As a general precept, the interests of inmates must always be balanced
against the unique institutional concerns that arise in the prison setting . . .
— such as securing the prison’s physical plant, maintaining order, safety,
and discipline, and providing for prisoners’ rehabilitative needs. See . . .
Small v. Horn, . . . 722 A.2d 664, 672 (1998). Nevertheless, the provision
of notice and a meaningful (if informal) means to challenge the amount of
[J-32-2023] [MO: Donohue, J.] - 14
the debt, assert an exemption, or otherwise raise an objection to the
deduction scheme, seems unlikely to impact upon these institutional goals.
Bundy, 184 A.3d at 558 (quotation marks and citations omitted).
We have explicitly held Act 84 deductions affect prisoner property interests and
are thus subject to procedural due process protections, despite the fact DOC
implemented policies concerning the deductions. And because DOC’s new policy is still
just that — a statement of policy that was never subject to the legislative-like process of
notice-and-comment rulemaking — I see no reason why Bi-Metallic would strip inmates
of their procedural due process rights. In Bi-Metallic, the Supreme Court explained
“[g]eneral 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.” 239 U.S. at 445 (further
assuming “the proper state machinery ha[d] been used”). Here, where an unelected
administrative agency released a policy without promulgating it through the public notice-
and-comment process, Bi-Metallic’s conditions are simply unmet. Thus, notwithstanding
Bi-Metallic, DOC’s Act 84 policy did not eliminate Washington’s entitlement to procedural
due process. 10
As a final point, I briefly stress the process due here need not be particularly formal
or burdensome to DOC. In Buck, we held inmates are not entitled to a judicial hearing
prior to the first Act 84 deduction. See 879 A.2d at 161. In Montañez, the Third Circuit
suggested “after providing the required initial notice the DOC could provide inmates with
10 The majority makes a salient point that disenfranchised prisoners do not have the
political remedy envisioned by Bi-Metallic. See Majority Opinion at 60-61 n.53. However,
absent full litigation of this complex topic, I would avoid a pronouncement today that this
bedrock principle of administrative law does not apply to the large populations of
Pennsylvanians who cannot vote (which would not only be prisoners, but also, for
example, children), and reserve judgment on that issue.
[J-32-2023] [MO: Donohue, J.] - 15
an informal opportunity to supply written objections to prison administrators prior to the
first deduction.” Montañez, 773 F.3d at 486. The court explained “DOC retain[ed]
discretion, consistent with its constitutional obligations, to implement such procedures in
a flexible and cost-effective manner.” Id. Then, in Bundy, we agreed with the Montañez
court, and noted even “informal” procedures could satisfy due process. Bundy, 184 A.3d
at 558-59 (explaining DOC simply must “(a) inform the inmate of the total amount of his
financial liability as reflected in his sentencing order, as well as [DOC’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”). We held such informal process would not
“significantly imped[e] [DOC’s] ability to carry out essential functions” for purposes of the
Mathews balancing test. Id. at 559.
Thus, although we use the term “hearing,” see Majority Opinion at 63 n.55, I clarify
(at least in my view) a “hearing” in this context still need not be formal. It must only comply
with the requirements of Bundy. Indeed, DOC’s Act 84 policy already provides for such
an informal process, including a form with written notice of all of the Bundy items
(including the 25% deduction rate) and which informs inmates they have an opportunity
to be heard if they file a grievance within 15 working days. See Collection of Inmate
Debts, DC-ADM 005, DEP’T OF CORRECTIONS, at Attachment 3-A (Jan. 15, 2020),
https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/005%20Collection%
20of%20Inmate%20Debts.pdf. Although this DOC form is currently used before the first
Act 84 deduction in compliance with Bundy, I suggest similarly informal means could be
used to provide procedural due process regarding the rate increase. But in accordance
with the Court’s disposition remanding to the Commonwealth Court for further
[J-32-2023] [MO: Donohue, J.] - 16
proceedings, the lower court can determine the specific post-deprivation process
Washington should receive on remand.
In sum, although I employ slightly different reasoning, I agree with the majority that
Washington was entitled to procedural due process before implementation of the rate
increase. I therefore join the majority opinion but for the caveats discussed above.
[J-32-2023] [MO: Donohue, J.] - 17
Washington, T., Aplt. v. PA Dept. of Corrections
Combined Opinion