the Ordinance fail based on our finding that the new law's penalties are civil in nature.
A bill of attainder is "a legislative Act which inflicts punishment on named individuals or members of an easily ascertainable group without a judicial trial." United States v. O'Brien, 391 U.S. 367, 383 n. 30, 88 S. Ct. 1673, 1682, 20 L. Ed. 2d 672 n. 30 (1968). "The proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group." Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 851, 104 S. Ct. 3348, 3354, 82 L. Ed. 2d 632 (1984). In analyzing challenged legislation, the Supreme Court has applied a "functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 475-76, 97 S. Ct. 2777, 2806-07, 53 L. Ed. 2d 867 (1977) (citing Mendoza-Martinez, 372 U.S. at 168-69).
In Gardner, supra, the Sixth Circuit also concluded that for an act to be a bill of attainder it must inflict punishment, and that the Columbus ordinance did not do so. 841 F.2d at 1278. We are persuaded by the Sixth Circuit's reasoning, and therefore hold that because the penalties at issue are not punitive the Ordinance cannot be a bill of attainder.
Plaintiffs' contention that the Ordinance is an unconstitutional ex post facto law also fails under similar scrutiny. It is well-established that the ex post facto prohibition only applies to punitive legislation. Id. at 1280, (citing Galvan v. Press, 347 U.S. 522, 531 n. 4, 74 S. Ct. 737, 743, 98 L. Ed. 911 n. 4 (1954)). "The ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 325-26, 18 L. Ed. 356 (1867)) (footnote omitted). In Weaver, the Supreme Court also noted, "no ex post facto violation occurs if the change effected is merely procedural, and does 'not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.'" Id. at 29 n. 12 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S. Ct. 202, 210, 28 L. Ed. 262 (1884)).
In the light of the Sixth Circuit's persuasive analysis in Gardner, we find that the ex post facto prohibition does not apply to the new Philadelphia regime because the penalties the Ordinance imposes are regulatory and not punitive in nature.
B. Procedural Due Process
For the plaintiffs' due process claim to reach constitutional dimensions and be cognizable under § 1983, they must prove that (1) the defendant acted under color of state law; (2) plaintiffs were deprived of constitutionally-protected property because of the defendant's actions; (3) the deprivation occurred without due process of law; and (4) plaintiffs suffered injury as a result of the deprivation without due process. Sample v. Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989); see also Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). Since the City understandably does not dispute that it acted under color of state law, we will only address the second and third elements of this test.
1. Deprivation of a Property Right
The second inquiry under the three-prong test requires us to consider whether the City's demand for money is a deprivation of a protected property interest within the meaning of the Fourteenth Amendment. We find it is.
Citing Monell v. Dept. of Social Serv. of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the City argues, "to establish a claim for violation of the Plaintiffs' due process rights, a municipal policy of deliberate indifference must be established" (Defendants' Memorandum of Law in Support of Motion for Summary Judgment at p. 32) (emphasis in original). Since plaintiffs have not argued that City Council passed the Ordinance with deliberate indifference to their constitutional rights, the City concludes that plaintiffs' due process challenge must necessarily fail.
The City fails to recognize an important distinction. To violate due process, it need not specifically intend to violate a person's constitutional right; rather, it must deliberately - and not accidentally - do an act that violates a person's constitutional right. Whether particular City Council members passed the Ordinance with actual consciousness that it violated due process is irrelevant. In Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), the Supreme Court discussed its holding in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (depriving an inmate of good time credit without the necessary procedural protections violated the due process clause), which is instructive on this point. The Court stated, "We think the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause." Daniels, 474 U.S. at 333-34. Similarly, in the case at bar, the pertinent governmental action is the deliberate decision to pass the Ordinance and collect fines, not, as the City suggests, the hypothesized negligent failure to provide procedural due process.
In Daniels, the Supreme Court considered what constitutes a "deprivation" for purposes of a due process claim. The Court held that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Id. at 328 (emphasis in original). The Court went on, however, to make clear that "deliberate decisions of government officials to deprive a person of life, liberty, or property," id. at 331 (emphasis in original), are subject to due process constraints.
The case here unquestionably involves an established governmental procedure, something that is an intentional, affirmative act. The City deliberately demanded monies from parking violators or entered judgment against them. The property right involved is the right to keep money unless the government takes it through actions that comport with due process. If the state does not have a legitimate claim to a person's money and, nevertheless, under color of state law demands or receives payment, its conduct amounts to a constitutional deprivation.
2. What Process is Due?
As courts have frequently emphasized, due process is a flexible concept and its protections vary according to the demands of a particular set of circumstances. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). A minimal part of due process is adequate notice: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950). Pertinent to the present controversy, "[a] decision made 'with blinders on', based on misinformation or a lack of information, cannot be binding as a matter of fundamental fairness and due process." Covington v. Dept. of Health & Human Serv., 750 F.2d 937, 943 (D.C. Cir. 1984).
Plaintiffs do not contest the validity of the Ordinance as it applies to people who received parking tickets after June 1, 1989, the effective date of the Ordinance. Rather, they raise several due process challenges to the Ordinance as the Director of Finance applied it to O'Neill and Goodman, parking violators who received tickets before June 1, 1989.
Plaintiffs contend that the "Violation Warning Notice" (Exhibit 4) the BAA sent to both of them in November of 1989 is insufficient to meet the requirements of due process.
Specifically, plaintiffs argue that the notice did not inform them that the BAA would consider failure to make an election between it and the Traffic Court as an automatic consent to the BAA's jurisdiction. Thus, they argue that any action or inaction based upon such an imperfect notice could not constitute a knowing, intelligent, and voluntary waiver of their due process rights.
The City counters that it did not, through its notices, involuntarily deprive Goodman and O'Neill of any right they may have had to appear before the Traffic Court on their pre-June 1, 1989 tickets. The City justifies the sufficiency of the "Violation Warning Notice" and the "Order of Default" only by noting that the plaintiffs chose to appear at the BAA and that the notices "adequately apprised the plaintiff [sic ] of their [sic ] rights; and did not imply that a judgment had already been entered against them" (Response of City Defendants to Plaintiffs' Motion for Summary Judgment p. 6) (emphasis in original).
We must begin with careful scrutiny of the "Violation Warning Notice" itself. The operative portion of the notice reads in its entirety:
You have ignored numerous notices previously mailed to you regarding the unpaid and uncontested parking violations listed below. We will continue to pursue this matter until these violations are contested or paid in full.