Petition for Writ of Certiorari — O'Neill v. City of Philadelphia

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Supreme Court, U.S

No.

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my FICE OF CLER

Supreme Court of the Hrited Stites -

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October Term, 1994

JOHN O’NEILL and SAMUEL R. GOODMAN, on behalf of

themselves and all others similarly situated,

Petitioners,

vs.

CITY OF PHILADELPHIA, PHILADELPHIA PARKING

AUTHORITY, OFFICE OF DIRECTOR OF FINANCE,

BUREAU OF ADMINISTRATIVE ADJUDICATION,

Respondents.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

ANDREW F. MIMNAUGH

1420 Locust Street

Suite 15-N

Philadelphia, Pennsylvania 19102

(610) 975-4655

VINCENT J. ZICCARDI

1435 South Broad Street

Philadelphia, Pennsylvania 19147

(215) 755-7790

Attorneys for Petitioners

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QUESTION PRESENTED FOR REVIEW

Did the Federal District Court abuse its discretion in

declining to abstain on the basis of the Younger v. Harris doctrine,

where Petitioners’ Complaint under 42 U.S.C. § 1983 was brought

at a time when there was no state prosecution or other activity

outstanding against the Petitioners; and the Petitioners had

voluntarily appeared before a City agency for the sole remedial

purpose of requesting the agency withdraw its unlawfully

obtained jurisdiction over them; and where Petitioners did not

take an appeal from the adverse order of the agency through the

State court system, but rather commenced this suit in the Federal

District Court of the Eastern District of Pennsylvania?

Answered in the affirmative by the United States Court of

Appeals for the Third Circuit.

TABLE OF CONTENTS

Page

Question Presented for Review ..............0e000: i

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Statement OF Farias 2... ccc cccccecenseeevesces l

Statutes and Constitutional Provisions Involved ....... 1

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Reasons for Granting the Writ .................0000- 8

COMERINIOR 6005 icccsensdsawenieeeeeeeeeee 11

TABLE OF CITATIONS

Cases Cited:

Allegheny Corp. v. Pomeroy et al., 898 F.2d 1314 (8th Cir.

i Pere re re a hy 8

Huffman v. Pursue, Ltd.,420 U.S.592 (1975) .......... 9

New Orleans Public Service, Inc. v. City Council of City of

New Orleans, 491 U.S. 350 (1989) ............006. 8

Patsy v. Florida Board of Regents, 457 U.S. 496(1982) .. 9,11

ili

Contents

Page

Thomas v. Texas State Board of Medical Examiners, 807

F.2d 453 (Sth Cir. 1987) ......00000...........0. 8

Statutes Cited:

28U.S.C.§ 1254(1) 20.0. eT ee eee ]

re 7

a DE | cc 6

8 6

28US.C. § 1343(4) 200. eee. 6

a i, 2,6, 8,9, 10

a ccc 2

42 Pa. CS. § 5333(e) ........... 6.0 cece eee, 3

Title 12, The Philadelphia Code, § 12-2800, et ae 2, 3,4

United States Constitution Cited:

FourteenthAmendment ........................... 1.2

APPENDIX

Appendix A — Sur Petition for Rehearing of the United

States Court of Appeals for the Third Ciscuit Dated

Contents

PEE Us FOE 60 46a gsAnsecdasheeaaieseia es

Appendix B — Opinion and Judgment Order of the United

States Court of Appeals for the Third Circuit Filed

I BO 0 00490696050 60d 6 ine eas cohen eee

Appendix C — Memorandum Opinion and Order of the

United States District Court for the Eastern District of

Pennsylvania Filed March 29, 1993 ...............

Page

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OPINIONS BELOW

The Opinion of the United States District Court for the

Eastern District of Pennsylvania was reported in 817 F. Supp. 558

(E.D. Pa. 1993), and acopy is appended (51a). The Opinion of the

United States Court of Appeals, majority and dissenting Opinions

was reported in 32 F.3d 785 and a copy is appended (3a).

STATEMENT OF JURISDICTION

The Judgment of the United States Court of Appeals for the

Third Circuit vacating the District Court’s Judgment of March

29, 1993, remanding the case to the District Court with

instructions to abstain under Younger v. Harris and to dismiss

Petitioners’ Complaint was entered on August 5, 1994. The

United States Court of Appeals for the Third Circuit entered an

Order denying Petitioners’ timely Petition for a Rehearing on

September 1,1994. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment

Section 1. Citizens of the United States

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

Property, without due Process of law; nor

deny to any person within its jurisdiction the

equal Protection of the laws.

42U.S.C § 1983

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District

of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. For the purposes of

this section, any Act of Congress applicable

exclusively to the District of Columbia shall

be considered to be a statute of the District of

Columbia.

Title 12, The Philadelphia Code, § 12-2807(8)

Any person who has received a parking

ticket, a parking citation or a summons from

the Philadelphia Traffic Court charging a

parking violation prior to the effective date of

this Chapter may elect to contest the violation

before the Director of Finance under the

procedures set forth in this Chapter for the

contesting of civil parking violations. If a

person elects to contest the violation before

the Director of Finance, he shall consent to

the jurisdiction of the Director of Finance and

the adjudication of the violation by the

Director of Finance, and the Parking

Authority shall notify the Traffic Court that

the City requests a dismissal of the summary

proceeding for the parking violation in

question.

STATEMENT OF THE CASE

Up to June 1, 1989, the Philadelphia Traffic Court had

exclusive jurisdiction over all summary offenses (42 Pa. C.S.

§ 1321) arising under Title 75 (Motor Vehicles) and under the

Philadelphia Code, Title 12, enacted pursuant thereto, including

parking violations.

The Pennsylvania Statute of Limitations barred the City of

Philadelphia from taking any action to enforce these summary

offenses two years after the issuance of the summons (42 Pa. C.S.

§ 5333(e)).

The traffic summonses which are the subject of this lawsuit

were issued to Petitioners prior to June 1, 1989 and subject to the

above provisions of law.

Pursuant to state enabling legislation, the Philadelphia City

Council enacted a new comprehensive Ordinance, amending

Title 12 of the Philadelphia Code, entitled “Administrative

Adjudication of Parking Violations”, effective June 1, 1989 (City

Code §§ 12-2800 et seg.).

It was the purpose of this new Code to reform the collection

procedures of traffic tickets in Philadelphia by decriminalizing

the process and creating a civil system. In particular, under the

former Philadelphia Traffic Code, a defendant was required to be

present in court before a disposition could be made of the case.

The City was also barred from taking any action to enforce a

summons two years after its issuance.

Under the new Administrative Code a summons unanswered

within fifteen days of issuance is declared in default, a fine and

penalty are assessed, and recorded as a debt due and owing to the

City of Philadelphia subject to collection.

The Ordinance established a Bureau of Administrative

Adjudication (“BAA”), presided over by a hearing examiner. The

BAA had no powers to summon an offender or enforce its

adjudication. A person could appear before it on a strictly

voluntary basis if he so wished to contest the debt which had been

established.

The Philadelphia City Council did not transfer the

jurisdiction over traffic tickets issued out of the Philadelphia

Traffic Court prior to June 1, 1989. Rather, it provided that the

holders of such tickets could elect to have their tickets

adjudicated before the BAA, only if they gave their consent to its

jurisdiction (§ 12-2807(8), Brief, p. 2).

However, the Deputy Director of Finance, a member of the

executive branch of the City government, without authority to do

so, transferred all traffic tickets issued out of the Philadelphia

Traffic Court prior to June 1, 1989 into the jurisdiction of the

BAA. Thus, all tickets then existing and unadjudicated within the

exclusive jurisdiction of the Philadelphia Traffic Court had been

transposed into a mature debt due and owing by the ticketholder

to the City of Philadelphia in express violation of the

Philadelphia Traffic Code.

The BAA thereafter sent notice to each of the more than two

million such ticketholders that they could elect to proceed either

before the Philadelphia Traffic Court or the BAA. However, it did

not inform them that their failure to proceed in the Traffic Court

would constitute an irrevocable consent to the jurisdiction of the

BAA.

Petitioners Goodman and O’Neill' were among the aforesaid

two million ticketholders who had not responded to a summons or

other notices’, nor had they responded to the notice of the BAA of

their right to elect the Traffic Court or BAA jurisdiction as set

forth above.

On March 4, 1991 Goodman requested the BAA to schedule

a parking ticket issued subsequent to June 1, 1989 within its

jurisdiction. The BAA notified Goodman that it would list all

tickets issued after June 1, 1989. When Goodman voluntarily

appeared at the hearing, the hearing examiner then notified

Goodman that he had listed an additional five tickets which had

issued out of the Philadelphia Traffic Court prior to June 1, 1989.

Goodman, through counsel, objected on the basis of lack of

jurisdiction and that the City was time-barred from taking any

action on those tickets by the Statute of Limitations. These

objections were overruled. Goodman was assessed fines and

penalties of $173 on the Philadelphia Traffic Court tickets, and

$74.10 for the BAA tickets. Goodman has paid these amounts.

1. All parties appear in the caption of the case excepting that Defendant

Philadelphia Parking Authority is no longer a party to this case.

2. Goodman: May 16,1989

December 7, 1988

December 11, 1987

February 26, 1987

O'Neill: May 1, 1989

October 10, 1988

November 28, 1987

6 |

In April, 1991 O’Neill voluntarily contacted the

Philadelphia Traffic Court to list three outstanding tickets issuing

out of that court. O’ Neill was then informed by the Traffic Court

that they no longer listed parking violation cases. O’ Neill then

requested a hearing before the BAA. At the hearing, O’Neill

objected to the jurisdiction of the BAA, which the hearing

examiner denied and imposed fines and penalties in the reduced

amount of $45.

Neither Goodman nor O’Neill took an appeal from the

hearing examiner’s decision to the Parking Appeals Panel and as

provided by the Ordinance, the decision became a final Order

from which an appeal to the Philadelphia Court of Common Pleas

could then be taken. Neither Goodman nor O’ Neill took an appeal

to that court.

On October 30,1991 O’ Neill and Goodman filed a five count

Complaint in the Federal Court for the Eastern District of

Pennsylvania, and subsequently amending it to include a claim

pursuant to 42 U.S.C. § 1983. Jurisdiction was based upon 28

U.S.C. §§ 1331 and 1343(3) and (4). It alleged the City of

Philadelphia, acting under color of law, had violated their

Fourteenth Amendment due process rights depriving them of

property. On October 15, 1992 Petitioners’ Motion for Class

Certification was denied, but the court agreed to proceed on the

basis of a constitutional test case for all persons similarly

situated.

On Cross Motions for Summary Judgment the District Court

granted (March 29, 1993) the City’s Motion with respect to

Counts One, Three, Four and Five, but declined the City’s

invitation to abstain under the Younger doctrine. The court

granted Petitioners’ Motion on Count Two, holding that the

City’s defective notice to Petitioners had deprived them, without

their consent or knowledge, of a Traffic Court proceeding in

which the Statute of Limitations defense was available. Judgment

was entered in favor of Goodman in the amount of $173 and the

City was directed to vacate its outstanding $45 judgment against

O'Neill. Because the City would be faced with a heavy financial

burden concerning the potential claims of 2,713,975 persons

similarly situated with regard to indisposed parking tickets

issuing out of the Philadelphia Traffic Court, this portion of the

Order as to supplemental relief was stayed pending appeal.

The City filed a Notice of Appeal on April 20, 1993 from the

judgment in the Federal District Court. Petitioners filed a cross

appeal which was subsequently withdrawn. Jurisdiction was

based upon 28 U.S.C. § 1291.

Neither the statement of issues, the briefs, nor the oral

- argument of the City raised the issue of federal abstention in any

of its forms. Panel member Senior Judge Garth raised the issue at

the commencement of the City’s presentation, to the exclusion of

all other issues as briefed by both parties.

The Third Circuit Court of Appeals Judges Garth and Roth

filed a majority Opinion August 5, 1994, holding that the District

Court abused its discretion in failing to abstain from hearing

O’Neill and Goodman’s federal claims in deference to the

overwhelming interest of the City of Philadelphia and the State of

Pennsylvania with respect to their on-street parking regulations.

A dissent was filed by Judge Lewis, in which he factually

distinguished this case from the decisions relied upon by the

majority.

REASONS FOR GRANTING THE WRIT

The United States Court of Appeals for the Third Circuit has

decided an important question of federal law in a majority

decision of two Justices (3a) with a Dissenting Opinion of one

Justice (23a) which has not been, but should be, settled by this

Court. In this case O’ Neill and Goodman, after appearing before

a City agency, did not appeal the resulting Final Order to the state

court judicial system, but rather proceeded by filing a Complaint

in the Federal District Court, Eastern District of Pennsylvania.

The United States Supreme Court in New Orleans Public Service,

Inc. v. City Council of City of New Orleans, 491 U.S. 350 (1989)

at p. 369, n. 4 specifically noted that although Younger requires a

party to a pending action in a state court to exhaust all state

appellate review provided, the question of whether a party

receiving a final adverse state administrative determination must

proceed through a state court judicial review is still an open

question.

This question has become all the more important since the

federal courts of appeal have arrived at opposite conclusions on

this issue. In Allegheny Corp. v. Pomeroy et al., 898 F.2d 1314

(8th Cir. 1990) the Eighth Circuit Court of Appeals found that

proceedings before the North Dakota Insurance Commission

were judicial in nature, and an applicant who was denied relief

was required to seek relief in state court judicial system and the

District Court should have abstained under the Younger v. Harris

doctrine. In Thomas v. Texas State Board of Medical Examiners,

807 F.2d 453 (Sth Cir.1987) the Fifth Circuit Court of Appeals

held that a medical doctor who was the subject of state agency

proceedings to revoke his medical license was not precluded

from pursuing a § 1983 cause of action in the federal courts

without first having exhausted state remedies. The court held that

the mere availability of state judicial review of administrative

proceedings which have ended does not mean that a case is

“pending” for purposes of Younger, relying on the United States

Supreme Court holding in Patsy v. Florida Board of Regents, 457

U.S. 496 (1982) that a plaintiff in a § 1983 case need not exhaust

his/her administrative remedies.

A reading of the Third Circuit Court of Appeals majority and

minority Opinions in this case reflects the same split of opinions

exists within the Circuit. The minority Opinion sets forth a

review of the compelling reasons for following the direction of

the United States Supreme Court in the Patsy decision which, of

course, are the views of the Petitioners.

Additionally, Petitioners herewith respond to the main thrust

of the majority Opinion commencing on page 12 (15a) which

applies the holding of Huffman v. Pursue, Ltd., 420 U.S. 592

(1975) with the present City agency proceedings.

The majority at page 12, footnote 13, and again at page 13,

paragraph 3 refer to the administrative proceedings in the present

Case as Coercive, since that was an essential factual feature in

Huffman.

However, the record in this case shows that the only action

by the City was the unlawful placing of the Petitioners’ Traffic

Court tickets within the jurisdiction of the BAA without their

required consent. This action had the effect of creating a debt due

and owing by the Petitioners to the City.

The Petitioners did not appear before the BAA under

compulsion of process, but rather for the remedial purpose of

having their Philadelphia Traffic Court tickets removed from the

jurisdiction of the BAA. There simply was no element of an

enforcement effort by the City.

At the conclusion of the BAA hearings in each case the

Petitioners were found to be liable to the City in a certain sum.

Thus, these proceedings had nothing to do with safety or

regulation of parking as set forth by the majority at page 14 (18a),

but rather the collection of a debt. The Goodman debt was paid in

full so that there wasn’t even the problem of debt collection

pending in that instance.

The subsequent suit under § 1983 brought by Petitioners in

the Federal District Court is based upon the unlawful actions of

the Office of the Director of Finance in creating a debt. The

refinements of parking regulations were never at issue in this

action, and if the Petitioners are successful not a single change

will take place in the regulation of on-street parking in

Philadelphia.

Petitioners have never challenged in the present lawsuit or

before the BAA the laws, regulations or procedures under which

it operates. Petitioners only seek to enforce the plain and

unambiguous language of the subject Ordinance which controls

the means of acquisition of jurisdiction over them. An appearance

before a tribunal to challenge its jurisdiction has never been held

to be a submission to the processes of that tribunal since the early

common law days.

The majority Opinion concern for the “aspersion on the

capabilities and good faith of state appellate courts” at page 12

(17a) are not well-founded. In the present case it is clear that the

Petitioners’ § 1983 case is based upon the acts of the City in

transferring the subject pre-June, 1989 Traffic Court parking

tickets to the jurisdiction of the BAA and the failure to give full

notice. The appearance of Petitioners before the BAA was not a

necessary element of this action, but rather evidence of the basic

facts.

It, therefore, follows that this cause of action could have

been pursued in the Federal District Court without Petitioners’

participation in administrative proceedings of any kind under

Patsy v. Florida Board of Regents, 457 U.S. 496 (1982).

The Petitioners in this case, however, went to the BAA as the

simple, most expeditious and least costly method of resolving

their differences. These efforts were not successful and under the

court majority view, this simple effort would commit them to the

State judicial processes to the end. The logic of this rule would

compel future Petitioners to forego simple state administrative

procedures which might efficiently solve their problems, since it

would foreclose the federal court System to them.

CONCLUSION

For the reasons set forth above, and for the reasons set forth

in the Dissenting Opinion in the Third Circuit Court of Appeals

(23a), this Petition for Writ of Certiorari should be granted.

Respectfully submitted,

ANDREW F. MIMNAUGH

VINCENT J. ZICCARDI

Attorneys for Petitioners

APPENDIX A — SUR PETITION FOR REHEARING OF

THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT DATED SEPTEMBER 1, 1994

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-1378

JOHN O’NEILL; SAMUEL R. GOODMAN, on behalf of

themselves and all others similarly situated

Appellees

CITY OF PHILADELPHIA; PHILADELPHIA PARKING

AUTHORITY; OFFICE OF THE DIRECTOR OF FINANCE:

BUREAU OF ADMINISTRATIVE OFFICE OF

ADJUDICATION

City of Philadelphia, Office of The Director of Finance and Bureau

of Administrative Adjudication,

Appellants

SUR PETITION FOR REHEARING

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA,

COWEN, NYGAARD, ALITO,

ROTH, LEWIS, MCKEE, and GARTH, Circuit Judges

The petition for rehearing filed by appellees in the above-

Appendix A

entitled case having been submitted to the judges who participated

in the decision of this Court and to all the other available circuit

judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a

majority of the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court,

s/ Roth

Circuit Judge

Dated: SEP 1 1994

APPENDIX B — OPINION AND JUDGMENT ORDER OF

THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT FILED AUGUST 5, 1994

Filed August 5, 1994

UNITED STATES COURT OFAPPEALS

FOR THE THIRD CIRCUIT

No. 93-1378

JOHN O’NEILL; SAMUEL R. GOODMAN, on behalf of

themselves and all others similarly situated

CITY OF PHILADELPHIA: PHILADELPHIA PARKING

AUTHORITY; OFFICE OF THE DIRECTOR OF FINANCE:

BUREAU OF ADMINISTRATIVE OFFICE OF

ADJUDICATION

City of Philadelphia, Office of The Director of Finance and Bureau

of Administrative Adjudication,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 91-06759)

Argued October 28, 1993

BEFORE: ROTH, LEWIS and

GARTH, Circuit Judges

(Opinion filed August 5, 1994)

Appendix B

Judith E. Harris

Michael F. Eichert (Argued)

Office of City Solicitor

1600 Arch Street, 8th Floor

Philadelphia, Pennsylvania 19103-1628

Attorneys for Appellants City of

Philadelphia, Office of The Director of

Finance, Bureau of Administrative

Office of Adjudication

Andrew F. Mimnaugh

1420 Locust Street

Suite 15-N

Philadelphia, Pennsylvania 19102

Vincent J. Ziccardi (Argued)

1435 South Broad Street

Philadelphia, Pennsylvania 19147

Attorneys for Appellees John O'Neill |

and Samuel R. Goodman

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal requires us to determine whether the federal

courts must entertain a constitutional challenge to the City of

Philadelphia’s parking ticket procedures that resulted in the

imposition of a $45 fine against plaintiff-appellee John O’ Neill,

which remains unpaid, and a $173 fine against plaintiff-appellee

Samuel Goodman, which was paid. We hold that the district court

Appendix B

Should have exercised its discretion to abstain, rather than to

decide the constitutionality of Philadelphia’s ticketing procedures.

Thus, we will vacate the district court’s judgment and remand with

instructions that the district court dismiss the plaintiffs’ complaint.

John O’Neill (“O’Neill”) and Samuel Goodman

(“Goodman”) brought suit in federal district court against the City

of Philadelphia, the Philadelphia Parking Authority, the Office of

the Director of Finance, and the Bureau of Administrative Office of

Adjudication (collectively, the “ City”), alleging that the City’s

reorganization of its system for adjudicating parking tickets

violated their constitutional rights, and the constitutional ri ghts of

similarly situated plaintiffs. On March 29, 1993, the district court

granted summary Judgment in favor of the plaintiffs on their due

process claim, vacating the City’s $45 fine against O’Neill, and

entering judgment in the amount of $173 in favor of Goodman.

O'Neill v. City of Philadelphia 817 F. Supp. 558 (E.D. Pa. 1993).

Although the district court declined the City’s invitation to

abstain from exercising jurisdiction over this action, id. at 562 n.8,

and despite the City’s failure to protest the district court’s

abstention determination on appeal, we asked the parties to submit

supplemental briefs addressing the question of whether the district

court properly should have abstained from entertaining the

plaintiffs’ claims under the abstention doctrine announced by the

Supreme Court in Younger v. Harris, 401 U.S. 37 (1971), and its

progeny.'

We conclude that the district court abused its discretion in

1. Eventhough the question of Younger abstention was not raised by the parties

on appeal, we may consider it sua sponte. Bellotti v. Baird, 428 U.S. 132, 143-44n.10

(Cont'd)

Appendix B

refusing to abstain under Younger and in reaching the merits of

O’Neill and Goodman’s due process claim.

Il.

Prior to June 1, 1989, the “Traffic Court of Philadelphia” had

original jurisdiction to adjudicate parking violations committed in

the City of Philadelphia. 42 Pa. Cons. Stat. Ann. §§ 1302 and 1321.

Appeals from the traffic court’s decisions were heard by the

Pennsylvania Court of Common Pleas.

(Cont'd) ‘

(1976); McLaughlin v. Pemsley, 876 F.2d 308, 314n.5 (3d Cir. 1989); Blake v. Kline,

612 F.2d 718, 727 (3d Cir. 1979). Cf. Winston v. Children and Youth Servs., 948 F.2d

1380, 1384-85 (3d Cir. 1991) (declining to address question of abstention where

defendants failed to preserve the issue for appellate review). But see id. at 1396-98

(Garth, J., dissenting) (citing cases holding that failure to file a cross appeal did not

preclude Court of Appeals’ consideration of particular issues).

In addition, we note somewhat surprisingly that we are not the first federal

Court of Appeals to focus on the Younger problerns that arise when parking tickets are

challenged in § 1983 actions. In a case similar to the one before us on appeal, the

Seventh Circuit decided that Younger abstention was appropriate where the federal

claimant had initiated a federal action instead of contesting his numerous parking

violations in the available state forum. Jacobson v. Village of Northbrook Mun.

Corp., 824 F.2d 567 (7th Cir. 1987). See also Horn v. City of Chicago, 860 F.2d 700

702 n.5 (7th Cir. 1988) (reversing district court s holding that parking ticket demand

notices issued by the City of Chicago violated the plaintiffs’ due process rights and

seriously questioning district court’s conclusion that Younger abstention was not

appropriate); Ballard v. Wilson, 856 F.2d 1568 (Sth Cir. 1988) (holding that Younger

precluded consideration of claims for injunctive and declaratory relief while state

criminal prosecutions were pending against Ballard on his thirty-six violations of the

City of Houston’s overtime parking ordinance); Friedman v. Beame, 558 F.2d 1107

(2d Cir. 1977) (recognizing but refusing to decide Younger issue in action challenging

City of New York’s parking regulations).

Appendix B

In 1989, the Philadelphia City Council reorganized the City’s

system for adjudicating parking tickets by enacting an ordinance

which authorized the Office of the Director of Finance to assume

control over the regulation and disposition of parking violations in

the City of Philadelphia. 12 Phila. City Code § 12-2802(1). Under

the new framework, a parking ticket is affixed to the vehicle, id.

§ 12-2804(3), and the owner of the ticketed vehicle is sent a notice

by first class mail. Jd. § 12-2805(1). The person to whom the ticket

is issued has fifteen days to answer it, either admitting the violation

by payment of the fines, costs, and fees, admitting with

explanation, or denying liability and requesting a hearing. Jd. § 12-

2806(1). A failure to answer or to pay the fine will result in a

Bureau of Administrative Adjudication (“BAA”)? hearin g

examiner’s entering an order by default sustaining the charges,

fixing the appropriate fine, and assessing appropriate costs and

fees. Id. § 12-2807(3).

When the violation is contested, and a hearing is requested, a

BAA hearing examiner holds a hearing and determines whether the

charges have been established. Jd. § 12-2807. Once the hearing

examiner has entered his decision, the violator has thirty days to

file an appeal to the BAA Parking Appeals Panel. Jd. § 12-2808.

The BAA’s decision, or a default by the ticket holder, creates a debt

owed to the City. Jd. § 12-2808(5). The decision of the Parking

Appeals Panel can be appealed to the Pennsylvania Court of

Common Pleas, and through the state judicial system. 2 Pa. Cons.

Stat. Ann. § 752.3

2. Regulations adopted by the Director of Finance created the Bureau of

Administrative Adjudication for the purpose of exercising the duties and powers

enumerated in chapter 12-2800 of the Philadelphia City Code, the chapter added by

the 1989 ordinance.

3. Section 752 provides as follows: “Any person aggrieved by an adjudication

(Cont'd)

Appendix B

The effect of the 1989 reorganization was to change the nature

of parking violations from summary offenses, which were criminal

in nature, to civil violations. In practice, a defendant before the

traffic court was entitled to three rights not available ata BAA

hearing: (1) a disposition could not be made without the personal

appearance of the defendant, (2) the defendant’s guilt had to be

proved beyond a reasonable doubt, and (3) the two-year statute of

limitations for summary offenses was in effect.‘

Finally, the new ordinance created a period of dual

jurisdiction during which a person who had received a parking

ticket, citation, or traffic court summons between October 2, 1987

and May 31, 1989, could choose to proceed either in traffic court or

before the BAA. 12 Phila. City Code § 12-2807(8).

O’Neill and Goodman had received parking tickets both

before and after the effective date of the 1989 ordinance. Neither

(Cont’d)

of alocal agency who has a direct interest in such adjudication shall have the right to

appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to

Title 42 (relating to judiciary and judicial procedure).”

4. O’Neill and Goodman argue that they were unconstitutionally deprived of

rights which were only available in traffic court. We know of no constitutional right.

however, to a hearing before a tribunal of one’s own choosing, see Crane v. Hahlo,

258 U.S. 142, 147 (1928); Sill v. Pennsylvania State University, 462 F.2d 463, 469

(3d Cir. 1972), or to assert a defense based upon a given statute of limitations. See

Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).

5. The plaintiffs’ claims relate only to the retrospective application of the

reorganized adjudicatory procedures to the parking tickets they received prior to June

1, 1989. The tickets which fall into this category were issued on the following dates:

(Cont'd)

ee —

Appendix B

paid their fines. Neither responded to the summons and periodic

payment-notices which were sent to them. In particular, neither

answered “Violation Warning Notice[s]” sent in November 1989

by the Office of the Director of Finance explaining that they could

elect to appear before the traffic court or the BAA for the purpose

of contesting their outstanding tickets. Nor did they respond to

“Order[s] of Default” informing them that their failure to pay the

fines could result in the City’s taking further legal action which

might have an adverse effect on their property ri ghts.°®

On March 4, 1991, Goodman requested a hearing before the

BAA to contest a ticket he had received on February 4, 1991. The

hearing examiner held such a hearing on March 18, 1991, at which

it assumed jurisdiction over the February 4 ticket, and nine

additional tickets for which Goodman was responsible. Five of the

(Cont'd)

Goodman ONeill

May 16, 1989 May 1, 1989

December 7, 1988 October 10, 1988

December 1 1, 1987 November 28, 1987

December 11, 1987

February 26, 1987

6. While we need not reach the merits of the plaintiffs’ constitutional claim, we

note that at least one other Court of Appeals has held that individuals who have

received, but purposefully ignored, timely and repeated notices alerting them of their

righttoa hearing at which they could contest parking violations, are in no Position to

argue that those notices deprived them of due process. See Saukstelis v. City of

Chicago, 932 F.2d 1171 (7th Cir. 1991) (holding car owner who i gnored ten tickets,

follow-up notices, and 21-day warning of eligibility for booting, could not insist that

city violated his due process rights by putting “Denver Boot” on his car). Saukstelis

had been denied a preliminary injunction, giving rise to the appeal. Despite that

posture of the case, the Seventh Circuit remanded with instructions “to enter

judgment for the City wtthout further ado.” Jd. at 1174.

10a

Appendix B

tickets dated from before June 1, 1989. Five dated from after June

1, 1989.

Goodman objected that the BAA lacked jurisdiction to

determine his liability on the pre-June 1, 1989 tickets, and that, in

any event, he had the right to raise the statute of limitations as a

defense in the BAA proceeding. The hearing examiner overruled

Goodman’s objections and assessed total fines of $173.00 for the

pre-June 1, 1989 tickets, and $74.10 for the post-June 1, 1989

tickets. Goodman paid his fines.’

In April 1991, O’Neill attempted to list for disposition with

the traffic court three pre-June 1, 1989 parking tickets. The traffic

court informed him that it no longer heard parking violation cases.

O’ Neill then requested a hearing with the BAA at which he raised

the same objections as Goodman. On August 30, 1991, the BAA

hearing examiner rejected O’Neill’s objections but reduced his

liability for the outstanding parking tickets to $45.00. O’ Neill has

not paid his fine.

On October 30, 1991, O’ Neill and Goodman filed a five-count

complaint (later amended) against the City of Philadelphia,

pursuant to 42 U.S.C. § 1983, alleging that the City had violated

their constitutional and state-law rights by denying them a hearing

before the traffic court with respect to the parking tickets they had

received prior to June 1, 1989.8 On October 15, 1992, the district

7. Even though Goodman has paid his fines, a possible refund of those fines

constitutes a collateral consequence sufficient to prevent mootness. Elkin v. Fauver,

969 F.2d 48, 53-54 n.4 (3d Cir. 1992); Nakell v. Attorney Gen., 15 F.3d319, 322 (4th

Cir. 1994).

8. Count One alleged that the City had violated the plaintiffs’ due process

rights by denying them the rights which had been avallable in traffic court.

(Cont'd)

lla

Appendix B

court denied the plaintiffs’ motion for class certification but agreed

to consider the action as a test case for persons similarly situated.

The case was submitted on cross motions for summary judgment.

On March 29, 1993, the district court granted the City’s

motion for summary judgment as to four of the five constitutional

claims alleged in the plaintiffs’ complaint.'° With respect to the

(Cont'd)

Count Two alleged that the City had violated the plaintiffs’ due process rights,

and the Ex Post Factoclause of the United States Constitution, by failing to obtain the

plaintiffs’ consent to its jurisdiction, as required by the City ordinance, and by

applying the laws and regulations governing hearings under the 1989 ordinance, and

not those of the traffic court.

Count Three alleged that the City exceeded the authority granted under

Pennsylvania law by unlawfully extending the BAA’ subject matter jurisdiction.

Count Four alleged that the BAA violated the U.S. and Pennsylvania

Constitutions by holding hearings on parking violations that were time barred under

Pennsylvania law.

Count Five alleged § 12-2807(4) is an unconstitutional Bill of Attainder to the

extent it subjects the plaintiffs’ vehicles to seizure without a hearing.

9. The City argues that the district court lacked jurisdiction to hear the

plaintiffs’ claims. In particular, the City argues that because the plaintiffs did not

appeal the hearing examiner's determination to the Parking Appeals Panel, under 12

Phila. City Code § 12-2808(5), the Finance Director’ s Office had not reached a final

decision as to the plaintiffs’ liability, and that, therefore, the plaintiffs’ federal suit

was premature. We disagree. Section 12-2808(5) explicitly provides that “in the

event that no appeal is taken [to the Parking Appeals Panel], the order of the Parking

Hearing Examiner shall be the final order [of the Finance Director's Office].”

10. The plaintiffs-appellees have not appealed the district court's grant of

(Cont'd)

12a

Appendix B

remaining count (“Count Two”), however, the district court held

that the City’s failure to allow the plaintiffs to challenge their pre-

June 1, 1989 tickets in traffic court, as opposed to the BAA,

violated the plaintiffs’ due process rights. Consequently, the

district court entered judgment in favor of Goodman in the amount

of $173.00, and directed the City to vacate its outstanding $45.00

judgment against O’ Neill.

The district court also ordered the parties to submit

memoranda as to the appropriate terms of relief, and procedure to

be adopted by the BAA, with respect to the 2,713,975 persons

similarly situated to O’ Neill and Goodman (i.e., persons who had

indisposed of parking violation summonses issued before June 1,

1989). Recognizing the potentially heavy financial burden such

relief might place on the City’s resources, the district court stayed

this latter portion of its order pending appeal.

We have jurisdiction over the City’s appeal from the partial

grant of summary judgment in favor of O’Neill and Goodman

pursuant to 28 U.S.C. § 1291.

Ill

The abstention doctrine first announced by the Supreme Court

(Cont’d)

summary judgment against them on the constitutional claims alleged in Counts One,

Four, and Five, nor its grant of summary judgment with respect to the ex post facto

allegations in Count Two. Because the plaintiffs did not press for summary judgment

on the state claims alleged in Counts Three and Four of their complaint, the district

court deemed them to have been withdrawn without prejudice. The district court’s

judgment is found inits entirety at O’Neill v. City of Philadelphia, 817 F. Supp. at 570-

71(E.D. Pa. 1993).

13a

Appendix B

in Younger v. Harris, 401 U.S. 37 (1971), in the context of a

pending state criminal prosecution, has since been extended to

non-criminal state civil proceedings, Huffman v. Pursue, Ltd., 420

U.S. 592 (1975), and state administrative proceedings, Middlesex

County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

(1982), in which important state interests are implicated, so long as

the federal claimant has an opportunity to raise any constitutional

claims before the administrative agency or in state-court judicial

review of the agency’s determination. Ohio Civil Rights Comm’n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986).

In Middlesex, the Supreme Court delineated three

requirements which must be satisfied before a federal court may

abstain from hearing a case over which it has jurisdiction: (1) there

must be pending or ongoing state proceedings which are judicial in

nature; (2) the state proceedings must implicate important state

interests; and (3) the state proceedings must afford an adequate

Opportunity to raise any constitutional issues. 457 U.S. at 432:

Olde Discount Corp. v. Tupman. 1 F.3d 202, 211 (3d Cir. 1993)."

“We exercise plenary review over the legal determinations of

whether the requirements for abstention have been met. [Citations

omitted.] Once we determine that the requirements have been met,

we review a district court’s decision to abstain under Younger

abstention principles for abuse of discretion.” Gwynedd

Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1199

(3d Cir. 1992).

11. Even if these three elements are satisfied, abstention is not appropriate

where the federal claimant makes a showing of bad faith, harassment, or some other

extraordinary circumstance. Middlesex, 457 U.S. at 435. We note that, in the present

Case, no such extraordinary circumstances exist.

l4a

Appendix B

‘

We need not belabor the question of whether a BAA

proceeding is “judicial in nature.” Clearly, itis. See Williams v. Red

Bank Bd.. of Ed., 662 F.2d 1008, 1020-21 (3d Cir. 1981).'* The

more compelling issue is whether, in the present case, there is a

“pending” state proceeding inasmuch as O’Neill and Goodman

filed their federal lawsuit in lieu of appealing the hearing

examiner’s determination, and in lieu of raising their

constitutional claims in the state forum.

12. Under 12 Phila. City Code § 12-2807, hearings must be conducted “ina fair

and appropriate rnanner.” The defendant may call witnesses, supplement testimony

by affidavits, and interpose legal arguments. While the technical rules of evidence do

not apply, “all relevant evidence of reasonably probative value may be received.”

Testimony must be given under oath. A record of the proceeding must be made. The

hearing examiner is authorized to conduct extensive fact-finding and to compel the

production of any document, paper, or record relevant to the violation charged. He

must issue his decision based on the evidence and arguments offered.

Under 12 Phila. City Code § 12-2808(2), the Parking Appeals Panel:

shall have the power to review the facts and the law, and

shall have power to affirrn the determination or to

reverse or modify any determination appealed from for

error of fact or law, or to remand for additional

proceedings, or, in appropriate cases, to hear the matter

de novo.

See, e.g., Middlesex, 457 U.S. at 423 (holding state bar disciplinary proceedings

judicial in nature where local attorney ethics committees act as an arm of the state

supreme court in performing the function of receiving and investigating complaints

and holding hearings). But see New Orleans Pub. Serv.,Inc. v. Council of City of New

Orleans, 491 U.S.369-73 (1989) (holding ratemaking proceeding because the setting

of future utility rates essentially is a legislative act).

15a

Appendix B

It is a well-settled that, “[flor Younger purposes, the State’s

trial-and-appeals process is treated as a unitary system, and for a

federal court to disrupt its integrity by intervening in midprocess

would demonstrate a lack of respect for the State as sovereign.”

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

491 U.S. 350, 369 (1989) (“NOPSTI’). Thus, “a necessary

concomitant of Younger is that a party [wishing to contest in

federal court the judgment of a state judicial tribunal] must exhaust

his state appellate remedies before seeking relief in the District

Court.” Id., quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 608

(1975).

In contrast to Huffman where the federal claimant had failed to

appeal a state trial court judgment against it, here, O’Neill and

Goodman have failed to seek state-court judicial review of an order

entered in a state administrative proceeding. We are faced, then,

with the question left unanswered by the Supreme Court in NOPSI:

whether a state proceeding is “pending,” and Younger abstention

proper, where the adjudicatory process has become final as a result

of the federal claimant’s failure to pursue state-court judicial

review of an unfavorable state administrative determination? 491

U.S. at 369 & n.4 (1989).

The Courts of Appeals have furnished contradictory answers

to this question. Compare Thomas v. Texas State Bd. of Med.

Exam., 807 F.2d 453, 456 (Sth Cir. 1987) (holding “mere

availability of state judicial review of state administrative

proceedings does not amount to the pendency of state judicial

proceedings within the meaning of Younger with Allegheny Corp.

v. Pomeroy, 898 F.2d 1314 (8th Cir. 1990) (holding district court

should have abstained where Alleghany had filed action in federal

court instead of appealing state administrative decision to North

Dakota state courts).

l6a

Appendix B

We have been given no reason why a litigant in a state

administrative proceeding should be permitted to forego state-

court judicial review of the agency’s decision in order to apply for

relief in federal court. Rather, we find the grounds offered by the

Supreme Court to support its holding in Huffman — that state

appellate review of a state court judgment must be exhausted

before federal court intervention is permitted — are equally

persuasive when considered with respect to state-court judicial

review of a state administrative determination.”

13. We find no inconsistency between our holding and the principle that

administrative remedies need not be exhausted prior to bringing a § 1983 action in

federal court. Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982). As the Supreme

Court stated in Dayton Christian Schools:

The application of Younger principles to pending state

administrative proceedings is fully consistent with Patsy

.., which holds that litigants need not exhaust their

administrative remedies prior to bringing a § 1983 suit in

federal court. Cf. Huffman v. Pursue, Ltd., 420 U.S. 592,

607-11 (1975). Unlike Patsy, the administrative

proceedings here are coercive rather than remedial,

began before any substantial advancement in the federal

action took place, and involve an important state interest.

477 U.S. at627-28 n.2. The critical distinction between Dayton Christian Schools and

Patsy is that Patsy involved a remedial action brought by the plaintiff to vindicate a

wrong which had been inflicted by the State. In contrast, Dayton Christian Schools

involved an administrative proceedings initiated by the State, before a state forum to

enforce a violation of state law. Thatis, in Dayton Christian Schools, the action taken

by the Ohio Civil Rights Commnission was coercive rather than remedial, just as the

action taken by the City of Philadelphia, to enforce its traffic tickets against O’ Neill

~ and Goodman, was coercive action which the plaintiffs sought tocircumvent by filing

their complaint in federal court.

17a

Appendix B

First, federal intervention before a state court has had the

opportunity to review an agency’s decision is no less an “aspersion

on the capabilities and good-faith of state appellate courts,” and no

“less a disruption of the State’s efforts to protect interests which it

deems important,” 420 U.S. at 608, than the federal intervention

with the state judicial appellate process explicitly condemned in

Huffman. Second, federal intervention which would annul the

results of an agency determination would deprive ‘““the States of a

function which quite legitimately is left to them,” i.e., the

disposition of constitutional issues which arise in litigation over

which they have jurisdiction. Jd. at 609.

The requirement that litigants pursue state-court judicial

review of state administrative decisions serves two additional

purposes, identified by the Eighth Circuit in Pomeroy, which goto

the very heart of the “comity” concerns upon which Younger

abstention is grounded: (1) “the state courts may construe state law

in a way which renders a constitutional decision unnecessary,” id.

898 F.2d at 1317, citing Penzoil Co. v. Texaco, Inc., 481 U.S. |

(1987) (stating that an “important reason for abstention is to avoid

unwarranted determination of federal constitutional questions’”’),

and (2) “interests of comity are advanced, and friction reduced, if

the courts of a state, rather than the federal courts, determine that

the United States Constitution requires the state to alter its

practices.” Pomeroy, 898 F.2d at 1318.

We therefore hold that state proceedings remain “pending,”

within the meaning of Younger abstention, in cases such as the one

before us, where a coercive administrative proceeding has been

initiated by the State in a state forum, where adequate state-court

judicial review of the administrative determination is available to

the federal claimants, and where the claimants have chosen not to

pursue their state-court judicial remedies, but have instead sought

to invalidate the State’s judgment by filing a federal action.

18a

Appendix B

The second prong of the Middlesex test is whether the

proceedings at issue implicate an important state interest. This

factor goes to the very core of the raison d’etre of Younger

abstention inasmuch as the Supreme Court’s holding in Younger

rested primarily on considerations of “comity,” a concept which

encompasses “a proper respect for state functions.” 401 U.S. at 44.

Accordingly, “when we inquire into the substantiality of the

State’s interest in its proceedings we do not look narrowly to its

interest in the outcome of the particular case — which could

arguably be offset by a substantial federal interest in the opposite

outcome. Rather, what we look to is the importance of the generic

proceedings to the State.” NOPSI, 491 U.S. at 364-65.

It would well nigh be impossible to overstate the point that the

federal courts have no interest whatsoever in the underlying

subject matter of this litigation the City of Philadelphia’s on-street

parking regulations. In contrast, the City of Philade!phia has a vital

and critical interest in the functioning of a regulatory system, such

as the one at issue here, which is intimately associated with the

physical and financial workings of the city in general, and of the

municipal government in particular.

Prior Supreme Court decisions have held that the states have a

substantial interest in enforcing criminal laws that bear a close

relationship to criminal proceedings, Huffman, 420 U.S. at 604, in

regulating attorney conduct, Middlesex, 457 U.S. at 434, in

administering child custody proceedings, Moore v. Sims, 442 U.S.

415 (1979), in preventing sex discrimination against employees,

Dayton Christian Schools, 477 U.S. at 628, and in regulating

19a

Appendix B

intrastate utility rates. NOPSI, 491 U.S. at 365."

We do not believe that we exaggerate the scope of these

decisions in holding that the City of Philadelphia has a significant

and substantial interest in the regulation of on-street parking, and

in the vindication of the system it has implemented to adjudicate

violations of those regulations." The plaintiffs, in fact, have

conceded as much in their supplemental brief. See Appellee’s

Supp. Br. at 1 (“This case involves the regulation and

administration of on-street parking which, of course, is an

important interest to the State of Pennsylvania and the City of

Philadelphia.”).

14. We have held that the states have a substantial interest in education,

Williams v. Red Bank Bd. of Ed., 662 F.2d at 1017-18 (3d Cir. 1981) (noting that states

interest in education is not weakened by the fact that, technically, local school boards

press disciplinary charges against teachers, and not the State), and in regulating

securities transactions. Olde Discount Corp. v. Tupman, | F.3d at212 (3d Cir. 1993).

See also Mission Oaks Mobile Home Park v. City of Hollister, 989 F.2d 359, 361 (9th

Cir. 1993) (finding important state interest in regulating mobile home parks even

though rental rates are regulated by local ordinance rather than statewide law);

Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 925 F.2d 962. 969 (6th Cir.

1991) (affirming district court’s finding important state interest in regulating

intrastate trucking).

15. The Supreme Court has recognized that “[t}he importance of the state

interest may be demonstrated by the fact that the noncriminal proceedings has a close

relationship to proceedings criminal in nature.” Middlesex, 457 U.S. at 432. Until

May 31, 1989, of course, parking infractions in the City of Philadelphia were criminal

offenses. Simply because parking violations are the least threatening of all motor

vehicle violations — and are now civil offenses in the City of Philadelphia — does

not mean that the State’s overriding interest in enforcing its motor vehicle laws, many -

of which remain criminal in nature, has had its importance diluted.

20a

Appendix B

The third prong of our inquiry is whether the claimant is

afforded an adequate opportunity to raise his constitutional claims

in the state forum. The Supreme Court has held that this third

element is satisfied in the context of a state administrative

proceeding when the federal claimant can assert his constitutional

claims during state-court judicial review of the administrative

determination. Dayton Christian Schools, 477 U.S. at 629;

Middlesex, 457 U.S. at 436. Moreover, “when a litigant has not

attempted to present his federal claims in related state-court

proceedings, a federal court should assume that state procedures

will afford an adequate remedy, in the absence of unambiguous

authority to the contrary.” Penzoil Co. v. Texaco, Inc., 481 U.S. at

15.

In the present case, neither O’ Neill nor Goodman attempted to

raise his federal claims in the state proceedings. Accordingly, we

would be well-justified in assuming that, had they done so, they

would have been afforded an adequate remedy.'*In any event, it is

undisputed that O’Neill and Goodman could have raised their

constitutional arguments before the administrative review board,

again in the state-court appellate process, to and through the

Pennsylvania Supreme Court, and, ultimately, before the United

16. In Williams v. Red Bank Bd. of Ed., 662 F.2d 1008 (3d Cir. 1981), we held

that a federal claimant is afforded an opportunity to assert her constitutional claims in

the state forum where an administrative board is authorized to dismiss the charges

against the claimant. In this respect, we note that the BAA Parking Appeals Panel is

authorized “to review the facts and the law, and shall have the power to affirm the

{hearing examiner’s}] determination or to reverse or modify any determination

appealed from for error of fact or law, or to remand for additional proceedings, or, in

appropriate cases. to hear the matter de novo.” 12 Phila. City Code § 12-2808(2).

2la

Appendix B

States Supreme Court. See 28 U.S.C. § 1257(a).”

In sum, we hold that the three-prong test for Younger

abstention is satisfied in the present case. The BAA proceeding

was a judicial proceeding which may be deemed “pending” as a

result of O’ Neill’s and Goodman’s failure to take advantage of the

appellate remedies which were available to them. The

implementation of Philadelphia’s procedures for adjudicating

parking tickets implicates important state (and not federal)

interests. Lastly, O’ Neill and Goodman could have asserted their

constitutional claims in the state proceedings.

Anxious though we may be “to vindicate and protect federal

rights and federal interests,” Younger, 401 U.S. at 44,

considerations of comity demand that we remain sensitive to the

legitimate interests of the states. Since this case does not involve

any of the extraordinary circumstances which would otherwise

make abstention inappropriate, we hold that the district court

abused its discretion in failing to abstain from hearing O’ Neill and

Goodman’s federal claims in deference to the overwhelming

interest of the City of Philadelphia and the State of Pennsylvania

with respect to their on-street parking regulations.

17. 28U.S.C. § 1257 provides in relevant part as follows:

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of

certiorari where . . . the validity of a statute of any State

is drawn in question on the ground of its being repugnant

to the Constitution, treaties, or laws of the United States,

or where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution. . . .

22a

Appendix B

Therefore, we will vacate the district court’s judgment of

March 29, 1993, and remand this case to the district court with

instructions to abstain under Younger v. Harris, and to dismiss the

plaintiffs’ complaint.

Costs will be taxed against O’ Neill and Goodman.

23a

Appendix B

LEWIS, Circuit Judge, dissenting.

Chief Justice Marshall may well have overstated his point

when, writing for the Court in Cohens v. Virginia, 19 U.S. (6

Wheat.) 264, 404 (1821), he stated: “We have no more right to

decline the exercise of jurisdiction which is given, than to usurp

that which is not given. The one or the other would be treason to the

constitution.” Marshall’s absolutist view of the federal courts’

duty to exercise the jurisdiction Congress and the Constitution

afford them is frequently quoted, but of course, it has not been

faithfully followed.' Abstention decisions, among others,

demonstrate that federal courts can and do decline to hear cases

that they have the constitutional and statutory authority to decide.

But see New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350,

358 (1989) (“NOPS”) (stating that “federal courts lack the

authority to abstain from the exercise of jurisdiction that has been

conferred”, and describing abstention cases as merely restricting

the availability and timing of certain forms of relief). Nonetheless,

the ideal behind Marshall’s statement in Cohens remains a

meaningful one; even the decisions disproving its accuracy

recognize and come to terms with the significant degree of truth to

its directive. In Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976), for example, where the Supreme

Court concluded that federal jurisdiction should not be exercised,

it cautioned that abstention “represents an extraordinary and

1. Professor Shapiro has pointed out that the circumstances of Cohens, acase

requiring Marshall to assert and defend the Supreme Court’s authority to review state

court decisions, might account for the “frightening” tenor and content of his

pronouncement. David L. Shapiro, “Jurisdiction and Discretion,” 60 N.Y.U. L. Rev.

543, 543-44 (1985). He suggests as well that on at least one other occasion, in Mason

v. Ship Blaireau, 6 U.S. (2 Cranch) 240, 264 (1804), Marshall seemed to recognize

that federal courts did retain a degree of discretion not to exercise jurisdiction that

undoubtedly existed. Id. at 545 n.12 and accompanying text.

24a

Appendix B

narrow exception to the duty of a District Court to adjudicate a

controversy properly before it.” Jd. at 813 (quoting County of

Allegheny v. Frank Mashida Co., 360 U.S. 185, 188-89 (1959)).

This “obligation of the federal courts to exercise the jurisdiction

given them,” the Court later emphasized, is “virtually unflagging.”

Id. at 817; see also NOPSI, 491 U.S. at 359 (same); Deakins v.

Monaghan, 484 U.S. 193, 203 (1988) (same). Thus, as we recently

reiterated, “[a]bstention is the exception and not the rule.” Marks

v. Stinson, 19 F.3d 873, 881 (3d Cir. 1994); see also NOPSI, 491

U.S. at 359 (same); Colorado River, 424 U.S. at 813 (same).

“Abdication of the obligation to decide cases can be justified under

this doctrine only in exceptional circumstances where the order to

the parties to repair to the State court would clearly serve an

important countervailing interest.” Kentucky West Virginia Gas

Co. v. Pennsylvania Public Utility Comm’n, 791 F.2d 1111, 1114

(3d Cir. 1986) (quoting County of Allegheny, 360 U.S. at 188-89).

In light of these well-established principles, I believe that the

majority’s expansion of the Younger abstention doctrine is clearly

unwarranted. This area of the law is no place for inflexible

absolutes. (With all due respect to Chief Justice Marshall, not even

he could convince me that my colleagues in the majority have

committed treason to the Constitution.) But at the very least, a

federal court’s reasons for abdicating its responsibility to decide

cases over which it has jurisdiction should be quite strong. In my

view, the reasons supporting the majority’s decision that

abstention is mandated here are not nearly adequate.

The plaintiff-appellees, John O’ Neill and Samuel Goodman,

initiated proceedings in Philadelphia’s (the City) Bureau of

Administrative Adjudication (BAA) to challenge several parking

25a

Appendix B

tickets they had received. In response to Goodman’s and O’ Neill’s

requests, the BAA scheduled hearings to review their tickets. In

addition, however, the BAA decided that at the same time, it would

adjudicate a group of older tickets that the plaintiffs had received

prior to June, 1989. When the plaintiffs discovered this, they

objected that the BAA did not have the authority to make rulings on

the older tickets. The BAA hearing examiners who presided over

their cases rejected these arguments.”

The City concedes and in fact relies on the point that in

deciding to adjudicate Goodman’s and O’ Neill’s older (pre-June,

2. The BAA does not, and legally cannot, initiate hearings to review parking

tickets. As I discuss below, it is not a court of record. It has no authority to issue a

summons Or 4 warrant, nor can it enter acivil judgment. App. at 404-05. The majority

describes the administrative proceedings that occurred here as “coercive” action

taken by the City. Maj. Op. at 12 n.13. In my view, that is not correct. The only

conceivably coercive, proactive conduct the BAA took in this case was directly

prohibited by local ordinance.

The facts of Ohio Civil Rights Comm'n v. Dayton Christian Schools, 477 U.S.

619 (1986), which the majority views as describing “coercive” state-initiated action

similar to that which occurred here, are notably different. In Dayton Christian

Schools, a state agency acting within its lawful authority initiated an administrative

action against a private school by filing a complaint. Jd. at 624. While those

administrative proceedings were pending, the school filed a § 1983 suit in federal

district court. Here, in contrast, Goodman and O’ Neill initiated the administrative

process by requesting ahearing. The BAA did not and could not require them to do so.

It is legally incapable of coercing participation by unwilling individuals. The agency

did act independently and contrary to the plaintiffs’ wishes when it assumed

jurisdiction over their older tickets. As the City points out, however, that action was

flatly prohibited by local ordinance. The City thus describes the state action

challenged here as an unfortunate and legal by indefensible (but not unconstitutional)

mistake. In deciding to adjudicate Goodman’ s and O’ Neill’s older tickets, therefore,

the BAA hearing officers were acting contrary to the state's interests and instructions:

they were not acting in furtherance of the state’s valid goals. I discuss the legal

significance of these facts below. For now, I only mean to set them straight.

26a

Appendix B

1989) parking tickets, the BM hearing examiners plainly failed to

follow the local ordinance setting forth the agency’s powers and

procedures. See Phila. City Code § 2800 et seq. A provision of that

ordinance states that if a person elects to contest a parking ticket he

received prior to the date the ordinance became effective, he must

consent to the BAA’s jurisdiction to adjudicate that ticket. Phila.

City Code § 2807(8). The ordinance went into effect on June 1,

1989. The plaintiffs did not consent to and, in fact, expressly

challenged the BAA’s jurisdiction to adjudicate their older tickets.

Thus, the BAA hearing examiners acted contrary to law in

addressing the infractions that Goodman and O’Neill had been

charged with committing prior to June, 1 989.

The fact that the hearing examiners overlooked the clear

requirements of an applicable provision of the City Code is

understandable. Their job is to fairly and efficiently dispose of

challenges to parking tickets, a task that generally does not require

any extensive legal training or research. While the record does not

provide a comprehensive description of the educational and

professional backgrounds of BAA hearing examiners, I think we

can safely assume that they are not attorneys. Dominic Ceremeli

who, as a Deputy Director of Finance in charge of BAA operations,

supervises the hearing examiners, acts as an instructor during their

training, and presides over hearings himself when needed —

testified during his deposition that he is a high school graduate,

has some college education but no degree, and has not attended law

school. Presumably, at least as a general matter, the hearing

examiners serving under Ceremeli do not possess more advanced

legal credentials.

And given the job that hearing examiners do, they should not

need much specialized training in the law. The examiners are not

expected to evaluate complex legal arguments. They determine

what happened and decide whether that conduct constituted a

27a

Appendix B

parking violation. Accordingly, in the chapter of the Parking

Hearing Examiner Manual that covers defenses that ticket

recipients might raise, the subject of federal statutory or

constitutional rights never comes up. Instead, the examiners learn,

for example, that a “Going to the Bathroom” defense should not

succeed; after all, the Manual correctly explains, “This is a risk all

drivers take.” App. at 213.’ I do not mean to trivialize the important

and often difficult work that the BAA and its hearing examiners do

in adjudicating challenges to parking tickets. It is clear, however,

that nobody in or outside City government has ever believed that

the people who preside over this administrative process would

possess either the inclination or ability to evaluate the kind of

claims that arise under the federal civil rights statutes. Quite

simply, that is not the BAA’s job. See BAA “Mission Statement”,

App. at 174 (describing the BAA’s purpose and goals, which

include fairness and efficiency but not the protection of federal

rights).

Goodman and O’ Neill could have initiated an administrative

appeal before the Parking Appeals Panel within thirty days of the

date on which the hearing officers entered final determinations in

their cases. They did not do so. Rather, more than seven months

after Goodman’s hearing and two months after O’Neill’s, they

filed this § 1983 suit in federal district court, claiming, among

other things, that by adjudicating their older tickets, the City had

deprived them of property without due process of law in violation

of their Fourteenth Amendment rights. Significantly, then, when

3. The tone and content of the Manual further supports my belief that the BAA

hearing examiners are not attorneys. Otherwise, the Manual would not need to inform

its readers that “[t}he legal system over hundreds of years has developed very

complicated rules of evidence.” App. at 187. Nor, presumably, would it contain

advice like: “It is important that you listen carefully and pay attention”; or, “In

addition to paying attention, it is important that a Hearing Examiner does not lose his

temper.” App. at 184.

28a

Appendix B

Goodman and O’ Neill initiated their suit in federal court, the state

administrative process was over. Nothing was pending before the

BAA, and any effort the plaintiffs might have made to return there

to revive and pursue their administrative proceedings would have

been rejected as time-barred. See City’s Supp. Br. at 3 (stating that

the plaintiffs have foregone their opportunity for appellate review,

and that “[i]t is therefore no longer possible for the federal court to

retain jurisdiction while awaiting the outcome of a state

proceeding... .”). Thus, there has not been, and there could not

have been, ongoing legal activity at the state level since prior to the

time Goodman and O’ Neill brought this case.

The district court agreed with the plaintiffs that the City had

deprived them of their due process rights and entered summary

judgment in their favor. The City has appealed that decision.

Like the majority, I recognize that the abstention question this

case presents is an open one. The Supreme Court has not provided

an answer, and the courts of appeals have reached conflicting

results. Compare Allegheny Corp. v. Pomeroy, 898 F.2d 1314 (8th

Cir. 1990) (agreeing with the majority) with Thomas v. Texas State

Board of Medical Examiners, 807 F.2d 453 (Sth Cir. 1987)

(agreeing with me). The majority concludes that the district court

abused its discretion by failing to abstain under Younger v. Harris,

401 U.S. 37 (1971), and the cases following and extending

Younger'’s rationale. I disagree.

In Younger, supra, the Supreme Court held that absent

extraordinary circumstances, federal courts should abstain from

29a

Appendix B

enjoining ongoing state criminal prosecutions. The decision rested

on several grounds. The first was the “basic doctrine of equity

jurisprudence that courts of equity should not act, and particularly

should not act to restrain a criminal prosecution, when the moving

party has an adequate remedy at law and will not suffer irreparable

injury if denied equitable relief.” Younger, 401 U.S. at 43-44.

Clearly, this principle has no relevance here. Goodman and

O’ Neill have never been subject to anything resembling a criminal

prosecution. Additionally, there is no ongoing state proceeding to

enjoin. And lastly, because the plaintiffs cannot return to the BAA

administrative process, they have no means of seeking adequate

relief for their alleged constitutional injury through alternative

legal avenues.

However, as the Court has recognized in extending Younger

abstention beyond the context of criminal prosecutions, there is

more to this doctrine than “the accepted rule that equity will not

enjoin the prosecution of acrime.” Trainor v. Hernandez, 431 U.S.

434, 441 (1977). The Younger Court also “voiced a ‘more vital

consideration,’ namely, that in a union where both the States and

the Federal Government are sovereign entities, there are basic

concerns of federalism which counsel against interference by

federal courts, through injunction or otherwise, with legitimate

state functions, particularly with the operation of state courts.”

Trainor, 431 U.S. at 441 (citation omitted). These somewhat ill-

defined but significant considerations of comity and federalism are

the ones on which the majority relies in reaching its conclusion. In

my view, however, this case does not implicate such concerns to

the extent necessary to justify a decision mandating abstention

under the Younger doctrine.

The most significant and frequently cited reason federal

courts have articulated for abstaining under Younger has been the

30a

Appendix B

importance of not interfering with state proceedings. See, e.g.,

Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457

U.S. 423, 431 (1982) (stating that Younger and its progeny

“espouse a strong policy against interference with pending state

judicial proceedings”); Trainor, 431 U.S. at 445-46 (applying

Younger abstention to avoid “interrupting [state] enforcement

proceedings pending decision of the federal court” and the

“disruption of suits by the State in its sovereign capacity”). It is

important, we have repeatedly stated, to keep clear of pending state

cases. E.g., Coruzzi v. New Jersey, 705 F.2d 688, 690 (1983) (“The

Younger abstention doctrine rests on the strong federal policy on

noninterference with pending state judicial proceedings.”’) For this

reason, “[a] federal court may consider Younger abstention when

the requested equitable relief would constitute federal interference

in state judicial or quasi-judicial proceedings.” Marks v. Stinson,

19 F.3d at 882 (citing Middlesex County Ethics Comm., 457 U.S. at

431, and Huffman v. Pursue, Ltd., 420 U.S. 592, 599-600 (1975)).

But where such interference will not occur, “the principles of

comity underlying Younger abstention are not implicated.” Jd.

(quoting Gwynedd Properties, Inc. v. Lower Gwynedd Township,

970 F.2d 1195, 1201 (3d Cir. 1992)). As the Supreme Court put it in

Steffel v. Thompson, 415 U.S. 452, 462 (1974), “the relevant

principles of equity, comity, and federalism ‘have little force in the

absence of a pending state proceeding.’ ” In such circumstances,

the Court explained, a federal court can exercise its given

jurisdiction without creating duplicative legal proceedings or

disrupting the state system; nor could a decision allowing the

federal suit to go forward “be interpreted as reflecting negatively

upon the state court’s ability to enforce constitutional principles.”

Id.

Here, once again, there was no pending state proceeding when

Goodman and O’ Neill initiated their federal suit. Therefore, there

ee a

3la

Appendix B

was nothing with which the district court could have interfered by

exercising jurisdiction over the case. Indeed, the court did exercise

its jurisdiction in reaching the merits of the plaintiffs’ claims, and

no such interference took place. Because the BAA process was

over, it could not have been disrupted. Even had the district court

made a conscious and determined effort to hinder the state from

pursuing its important interests or demonstrating its ability to

recognize and protect federal rights, it could not have done so.

“Younger does not require federal plaintiffs to exhaust their

appellate remedies unless the relief being sought from the federal

court involves disruption of the state’s judicial process.” Marks,

19 F.3d at 884 (emphasis added). No such disruption is possible

here. The majority, nonetheless, concludes that abstention is not

only appropriate, but that by exercising its Jurisdiction, the district

court committed an abuse of discretion.

The Younger doctrine is also said to serve the interests of

comity and federalism by preventing federal courts from

protecting any doubt that state courts can and will protect federal

rights. See, e.g., Trainor, 431 U.S. at 446 (basing decision to

abstain on the desire to avoid disrupting state suits “combined with

the negative reflection on the State’s ability to adjudicate federal

claims that occurs whenever a federal court enjoins a pending state

proceeding”). According to the majority, this consideration

supports its conclusion that abstention is required here. It believes

that by exercising jurisdiction over Goodman and O’Neill’s § 1983

suit, the district court did in fact cast an “aspersion on the

capabilities and good-faith” of the state system. Maj. Op. at 12

(quoting Huffman, 420 U.S. at 608). At least, the majority reasons,

the insult was just as disparaging here as it would have been if the

plaintiffs had commenced their federal action after losing in the

Pennsylvania Court of Common Pleas. Once again, I disagree.

32a

Appendix B

Goodman and O’ Neill have alleged that the BAA examiners

presiding over their administrative hearings made decisions which

resulted in a violation of their Fourteenth Amendment rights.

Instead of bringing an appeal before other administrative officials

— who, like the original examiners, are not attorneys and are not in

the business of adjudicating § 1983 cases — the plaintiffs went to

federal court. When they did so, they had never been before a state

tribunal, nor had they ever had direct access to a state tribunal, that

was competent to hear their federal claims. Unlike judges in state

trial courts, the officials who administer BAA proceedings (at both

the hearing and appellate stages) cannot, as a practical or a legal

matter, decide whether the City should be held liable for a

deprivation of the plaintiffs’ constitutional rights. That is a

complicated question over which Article III judges have disagreed

in this case. State trial courts have concurrent jurisdiction over

§ 1983 suits, and Pennsylvania’s judges are perfectly capable of

handling them. The BAA, in contrast, is not even a court. The

officials presiding over its hearings and appeals are not attorneys.

They do not possess either the training or the resources to

adjudicate § 1983 suits. Even if those limitations did not exist, the

informal, streamlined procedural rules that govern BAA

proceedings would prevent agency officials from performing this

challenging job adequately. is it really such an insult to the state

system to allow individuals allegedly deprived of constitutional

rights at the first stage of such an administrative process to bring

their § 1983 suit in federal court, rather than first to proceed with

an administrative appeal and then to pursue relief through the state

courts?

The majority answers affirmatively. The aspersion cast by a

failure to abstain here, it states, would be equal in magnitude to that

cast by permitting plaintiffs to go forward with federal actions after

losing in state trial court. But by not abstaining here, the district

FR EN SP, PP er Se ee re pees eae ae

33a

Appendix B

court did not displace a state court of appeals. It displaced a BAA

parking appeals panel. Would we actually offend Pennsylvania by

allowing § 1983 claimants to prefer a federal district court to the

BAA? Would the State even defend its agency’s legal or practical

ability to handle such a case? Of course not. When the plaintiffs

suffered their alleged constitutional injury at their BAA hearings,

they had a choice: they could appeal within the agency or they

could bring suit in federal court. The decision they made, in my

view, does not disparage the good faith or the abilities of either

BAA administrators or the state courts. And I believe that

Pennsylvania would agree; the Commonwealth is not so

unrealistic or over-sensitive as the majority’s argument might

suggest.

So, in my view, the district court neither interfered with nor

insulted the state system when it exercised its jurisdiction over this

case, and those principal values of comity and federalism that

Younger abstention serves are not significantly (or, arguably, even

remotely) advanced by today’s decision.

The majority, however, lists several additional comity

concerns. It points out that if we failed to require abstention under

the circumstances of this case, state courts would not be able to

decide the constitutional issues that arise in disputes over which

they have jurisdiction. State courts would also lose the opportunity

to construe state laws in a way which would make the resolution of

federal constitutional questions unnecessary. And finally, the

majority reasons, it is better to let state courts determine when the

state must alter its practices to conform to the requirements of the

U.S. Constitution; that way, the “friction” and resentment

following federal decisions announcing such a mandate can be

avoided, and the interests of comity are furthered.

34a

Appendix B

I agree that if district courts exercise their jurisdiction over

§ 1983 suits brought after administrative decisions subject to

eventual state judicial review, state courts would not get the

opportunity to make preliminary determinations of state and (when

necessary) federal law.* However, if these comity concerns were

sufficient to require the abdication of federal judicial

responsibility to hear § 1983 cases, then we would require

plaintiffs to exhaust their available state remedies before bringing |

such suits in federal court. Of course, under the Supreme Court’s

holdings in Patsy v. Florida Board of Regents, 457 U.S. 496

(1982), and Monroe v. Pape, 365 U.S. 167 (1961), that is not

necessary. Section 1983 plaintiffs may forego opportunities to

seek recourse through state administrative and judicial processes

and elect to bring their federal claims, in the first instance, in

federal court. When they do so, as is often the case, state courts do

not get the opportunity to decide the state and federal law questions

that these disputes present. The very same comity concerns that the

majority relies on here give way to the overriding federal interest in

adjudicating suits alleging a violation of federally protected rights.

The additional comity concerns the majority mentions are no more

persuasive here than they were in Patsy, where the Supreme Court

looked past them in holding that § 1983 plaintiffs need not exhaust

their administrative remedies before proceeding in federal court.

See Patsy, 457 U.S. at 532 33 (Powell, J., dissenting) (defending

the exhaustion requirement as promoting the principles of comity

recognized in Younger and criticizing the Court’s decision-as

forsaking such considerations).

4. This case doesnot involve any difficult and unresolved issues of state law

that, depending on their resolution, might affect or make unnecessary our treatment of

the federal questions it presents. If it did. we might properly abstain under Railroad

Comm'n v. Pullman Co., 312 U.S. 496 (1941). The majority dogs not suggest that

Pullman abstention would be appropriate here.

35a

Appendix B

In Marks v. Stinson, we recognized that “Younger principles

must be applied in a manner consistent with [the] well-established

proposition” set forth in Patsy. Marks, 19 F.3d at 882. Unlike the

plaintiff in Patsy, however, Goodman and O’Neill had already

been through one stage of the state administrative process when

they commenced their suit in federal court. The majority believes

that once plaintiffs initiate BAA proceedings, they cannot be

permitted to leave the state system without exhausting their

appellate remedies. I agree that Patsy does not control here.

However, today’s decision strikes me as more about exhaustion

than abstention. In my view, this case is far closer to Patsy than it is

to Huffman v. Pursue, Ltd., 457 U.S. 592 ( 1975), and the other

Cases requiring Younger abstention.

In Huffman, supra, the sheriff and prosecuting attorney of a

county in Ohio brought suit under a public nuisance statute against

the owner of a theater that showed pornographic films. Following

trial, the state court ruled in Ohio’s favor. It issued a judgment

ordering the theater to close for one year and authorizing the state

to seize and sell property used in the theater’s operation. The next

day, rather than filing an appeal, the theater owner brought suit in

federal district court alleging that Ohio’s application of its

nuisance law was unconstitutional and asking for an injunction

prohibiting the enforcement of the state trial court’s judgment.

The Supreme Court held that the district court should have

abstained under Younger. In reaching that conclusion, it relied

heavily on “the policy of noninterference” with cases that are

pending before state courts. Huffman, 422 U.S. at 599-605. The

theater owner had argued that after the state trial court entered its

judgment, there was no ongoing proceeding to disrupt. The

Supreme Court rejected that position. Huffman, 420 U.S. at 608

(“[A] necessary concomitant of Younger is that a party in

36a

Appendix B

Virtually all of the evils at which Younger is

directed would inhere in federal intervention

prior to completion of state appellate

proceedings, just as surely as they would if

such intervention occurred at or before trial.

Intervention at the later stage is if anything

more duplicative, since an entire trial has

already taken place, and it is also a direct

aspersion on the capabilities and good faith of

the state appellate courts. Nor, in these state-

initiated nuisance proceedings, is federal

intervention at the appellate stage any the less a

disruption of the State’s efforts to protect

interests which it deems important. Indeed, it is

likely to be even more disruptive and offensive

because the State has already won a nisi prius

determination that its valid policies are being

violated in a fashion which justifies judicial

abatement.

Federal post-trial intervention, in a fashion

designed to annul the results of a state trial, also

deprives the states of a function which quite

legitimately is left to them, that of overseeing

trial court dispositions of constitutional issues

which arise in civil litigation over which they

have jurisdiction. We think this consideration

to be of some importance because it is typically

appellee’s posture must exhaust state appellate remedies before

seeking relief in the District Court. . . .”). Its reasons for doing so,

which are not applicable here, fully convey the differences

between Huffman and the case before us. The Court stated:

NPS PETA ATE NNO AO BB eee EI dai ISPS: oa Pr : SORT HARRIS IEIS olen Ss oe

37a

Appendix B

a judicial system’s appellate courts which are

by their nature a litigant’s most appropriate

forum for the resolution of constitutional

contentions.

Huffman, 420 U.S. at 608-09. Again, virtually none of those

justifications for abstention apply here. Federal adjudication of the

plaintiffs’ § 1983 claims would not be duplicative of the BAA

hearings; the hearing examiners could not and did not address the

constitutional implications of their decisions. As I have already

explained, displacing a parking appeals panel is entirely different

than displacing a state appellate court, and the former does not cast

any aspersion on the good faith or abilities of state institutions.

Unlike Huffman, in this case the district court did not disrupt a

State-initiated proceeding commenced to protect interests which

the state deems important. Rather, it was Goodman and O’ Neill

who initiated the BAA process. The agency, recall, is powerless to

do so itself.) And the state action giving rise to the plaintiffs’

constitutional claims has not been deemed important to the state

but has instead been characterized as an unfortunate and unlawful

mistake committed by individual administrative officials. Finally,

while state appellate courts might provide the litigant’s “most

appropriate forum for the resolution of constitutional

contentions”, Jd. at 609, one could hardly say the same thing about

a parking appeals panel. Such a suggestion, in fact, would reflect a

more insulting view of the state judiciary than any decision

declining to abstain under Younger.

The majority also states that Dayton Christian Schools, supra,

is more applicable here than Patsy. See Maj. Op. at 12 n.13. The

federal plaintiff in Patsy, it reasons, initiated a remedial action to

vindicate a wrong which had been inflicted by the State. Dayton

Christian Schools is different, in the majority’s view, because like

oe ene tcl ba ied

Oe eb Neem Sead aerate ae? Bane

38a

Appendix B

the case before us, it involved coercive administrative proceedings

initiated by the State to enforce a violation of state law. But

Goodman and O’Neill’s § 1983 suit is remedial — not, as the

majority suggests, purely defensive. The plaintiffs claim that the

BAA hearing examiners violated their due process rights in

deciding to adjudicate their older tickets, and they have sought

relief for that wrong in federal court. True, they could have pursued

the same remedy through an administrative appeal and then

through the state court system. Under the principles of Patsy,

however, which I believe are applicable here, they need not have

exhausted their state administrative and judicial options.

Additionally, unlike the federal plaintiffs in cases like Huffman

Dayton Christian Schools, Juidice v. Vail, 430 U.S. 327 (1977),

Trainor v. Hernandez, 431 U.S. 434 (1977), Moore v. Sims, 442

U.S. 415 (1979), and Middlesex County Ethics Comm., 457 U.S.

423 (1982), Goodman and O’ Neill have never been targets of state-

initiated legal proceedings. While the majority states that the BAA

process was coercive, the fact is that the BAA cannot adjudicate

tickets unless recipients request a hearing. Again, the agency does

not have the legal power to initiate its own process, and it cannot

coercively subject anyone to its authority. Thus, Goodman and

O’ Neill have not asked the district court for protection from the

state’s independent efforts to enforce its laws through an

administrative proceeding directed against them. Rather, after

allegedly suffering a constitutional injury at the hands of state

officials presiding over an administrative process that the plaintiffs

initiated for their own benefit, they turned to the federal district

court for relief instead of pursuing administrative and then judicial

appeals within the state system. In these circumstances, it requires

only the smallest extension of Patsy — as compared to a far greater

and less reasonable extrapolation of Huffman, Dayton Christian

Schools, and other decisions requiring Younger abstention — to

permit § 1983 plaintiffs to go forward with their claims in federal

court.

39a

Appendix B

Our prior decision in Kentucky West Virginia Gas Co. v.

Pennsylvania Public Utility Comm’n, 791 F.2d 1111 (3d Cir.

1986), supports this view. Kentucky West involved a dispute

between two gas companies and the Pennsylvania Public Utilities

Commission (“PUC”). The companies initiated an administrative

proceeding before the PUC seeking approval of a proposed rate

increase. The PUC denied their request, and the companies

challenged that, determination in state court. Shortly thereafter,

they filed suit in federal district court seeking declaratory and

injunctive relief. The federal complaint alleged that

Pennsylvania’s regulatory scheme and the PUCs decision were

either preempted by federal statute or unconstitutional under the

commerce and equal protection clauses. The district court

dismissed the companies’ suit under Burford and Younger

abstention. We reversed, stating:

“In the typical Younger case, the federal

plaintiff is a defendant in ongoing or threatened

State court proceedings seeking to enjoin a

continuation of those state proceedings.”

Crawley v. Hamilton County Comm'rs, 744

F.2d 28, 30 (3d Cir. 1984). In this case, on the

other hand, the federal plaintiffs — [the gas

companies] — are also the state plaintiffs.

Moreover, they are not seeking to enjoin any

State judicial proceeding; instead, they simply

desire to litigate what is admittedly a federal

question in a federal court, having agreed to

dismiss their pending state appeal if the district

court assumes jurisdiction over the merits of

their complaint.

Under the circumstances, then, we believe

40a

Appendix B

that the balance of state and federal interests

tips decidedly away from abstention under

Younger.... To deny [the gas companies]

access to a federal forum simply because of

their pending state appeal would be at odds

with a fundamental premise of our federal

judicial system: that is, “that where Congress

has granted concurrent jurisdiction, a plaintiff

is free to bring suit in both the state and federal

forums for the same cause of action.” [New

Jersey Educ. Ass’nv. Burke, 579 F.2d 764, 769

(3d Cir. 1978).]

Kentucky West, 791 F.2d at 1117. In Marks v. Stinson, we recently

reaffirmed the principles set forth in Kentucky West in holding that

Younger abstention was not appropriate where the exercise of

federal jurisdiction would not interfere with parallel state

proceedings. Marks, 19 F.3d at 885. The plaintiffs in this case

occupy the same position as the gas companies in Kentucky West

they have never been defendants in state administrative or judicial

proceedings; rather, after allegedly suffering a deprivation of their

federal rights as a result of a state administrative decision, they

chose to seek relief in federal court, indeed, the argument for

abstention was stronger in Kentucky West and Marks than it is here,

as this case does not raise real concerns of interrupting ongoing

litigation in state courts involving the same subject matter giving

rise to the federal suit. Our reasons for not abstaining previously,

therefore, seem even more compelling in this case.

The First Circuit’s decision in Kercado-Melendez v. Aponte-

Roque, 829 F.2d 255 (lst Cir. 1987), also counsels against a

decision mandating abstention. The plaintiff in that case, Kercado,

worked for the Puerto Rico Department of Public Instruction

4la

Appendix B

(“DPI”) as a school district superintendent. The Secretary of the

DPI charged Kercado with incompetence and improper conduct.

After Kercado appeared at an informal DPI hearing at which the

charges against her were addressed, she received an order

dismissing her from her employment. She had the option to appeal

her termination within the DPI administrative appeals process but

declined to do so. Instead, Kercado filed a § 1983 suit in federal

court alleging that she had been fired as a result of her political

affiliations in violation of her First Amendment rights, and further

that the state had deprived her of due process by failing to provide

her with a pre-termination hearing. On appeal, the Secretary of the

DPI argued “that because Kercado could have appealed the

dismissal to the DPI Board of Appeals, the district court should

have abstained and thereby forced Kercado to litigate her claims in

a Puerto Rico forum.” Kercado-Melendez, 829 F.2d at 259. “In

effect,” the court continued, the Secretary was arguing “that

Kercado should not have been permitted to bring a section 1983

suit in federal court because of the availability of an appeal within

the Puerto Rico administrative and judicial apparatus.” Jd. The

majority takes precisely the same position here.

The First Circuit rejected the Secretary’s argument. It

explained that in Kercado-Melendez, unlike Dayton Christian

Schools,

the administrative proceeding is remedial

rather than coercive. The administrative

appeal process couid be triggered only on

Kercado’s initiative if she wished to pursue her

remedies within the Puerto Rico administrative

framework. Patsy holds that she was not

required to do so.

Id. at 260 (emphasis added). The administrative process here, like

42a

Appendix B

the ones in Kercado-Melendez and Patsy and unlike the one in

Dayton Christian Schools., could be triggered only on the

plaintiffs’ initiative. The BAA was powerless to bring Goodman

and O’Neill before it, and it was powerless to compel them to

challenge the hearing examiners’ decisions before a parking

appeals panel. Accordingly, I agree with the First Circuit’s

conclusion that the principles of Patsy are more applicable than

those of Dayton Christian Schools or other decisions requiring

Younger abstention. As Kercado-Melendez explains, we should not

fail “to recognize that there is a significant difference between a

civil rights plaintiff who seeks to use the federal courts to stop or

nullify an ongoing state proceeding in which she is a defendant,

and a civil rights plaintiff who has an option to initiate a state

proceeding to remedy a constitutional wrong perpetrated by a state

actor.” Kercado-Melendez. 829 F.2d at 261.

In reaching its conclusion that Younger abstention is

mandated here, the majority seeks to protect and promote

principles of comity and federalism. I do not agree with its

assessment of the harm those interests would suffer if we permitted

the district court to exercise its jurisdiction. Additionally, although

the majority barely acknowledges this point, there are other highly

significant countervailing interests at stake in suits brought under

§ 1983 which merit serious consideration in any discussion of

Younger abstention. The majority’s analysis overlooks this second

side of the balance (after overestimating the first). In doing so, it

produces a result with deeply troubling implications.

When it enacted § 1 of the Civil Rights Act of 1871 (now

codified as 42 U.S.C. § 1983), “Congress intended to ‘throw open

the doors of the United States courts’ to individuals who were

43a

Appendix B

threatened with, or who had suffered, the deprivation of

constitutional rights, and to provide these individuals immediate

access to the federal courts notwithstanding any provision of state

law to the contrary.” Patsy, 457 U.S. at 504 (citation omitted)

(quoting legislative history). Thus, as the Court explained in

Mitchum v. Foster, 407 U.S. 225, 242 (1972): “The very purpose of

1983 was to interpose the federal courts between the States and the

people, as guardians of the people’s federal rights. . . .” Inenacting

legislation to make the federal courts “the primary and powerful

reliances” for vindicating federal rights under § 1983, Steffel, 415

U.S. at 464 (emphasis in original) , Congress was fully aware of

and undeterred by competing concerns of comity and federalism.

As the Court has stated, “Congress clearly conceived that it was

altering the relationship between the States and the Nation with

respect to the protection of federally created rights.” Mitchum, 407

U.S. at 242. It did so, nonetheless, to create “a uniquely federal

remedy against incursions under the claimed authority of state law

upon rights secured by the Constitution and the laws of the

Nation.” Jd. at 239.

Today, the majority holds that individuals allegedly deprived

of constitutional rights during the adjudication of their claims

before a state agency cannot pursue a § 1983 claim in federal court

even after the administrative process is no longer pending, and

even when they no longer have any recourse within the state

system.° Under the majority’s ruling, the only federal forum such

5. Iagree with the majority’s point that the plaintiffs lost their opportunity to

pursue administrative and then judicial appeals in the state system as a result of their

own conduct. In my view, however, Younger abstention is not a device to keep

litigants from choosing a federal forum when we feel their cases are better suited to the

State agencies or courts. Rather, it is a principle of restraint exercised only where the

exercise of jurisdiction would inflict overriding harm to competing values of comity

(Cont'd)

44a

Appendix B

plaintiffs will ever stand a chance of reaching is the United States

Supreme Court; and for a number of easily appreciated reasons,

that chance is remote. By so drastically limiting (if not, for all

practical purposes, foreclosing) access to the federal courts,

today’s decision runs directly counter to the purposes Congress

sought to achieve in enacting the civil rights legislation under

which the plaintiffs brought this suit.

Thus, in concluding that the district court committed an abuse

of discretion by exercising its jurisdiction, the majority not only

overstates the extent to which comity and federalism concerns are

implicated in this case; in addition, and of potentially greater

significance, its analysis fails to take into account the vital federal

and individual interests at stake in the adjudication of any case

brought under § 1983.

Il.

Because I disagree with the majority’s conclusion that the

district court abused its discretion by failing to abstain under

Younger, I willcomment very briefly on the merits of the plaintiffs

claims. In my view, there are none.

First, the City is the only remaining defendant in the case, and

the plaintiffs have not established that the alleged violation of their

constitutional rights occurred as a result of an official custom,

practice, or policy under the standard for municipal liability set

(Cont’d)

and federalism. Abstention serves to protect state interests and maintain a strong,

respectful relationship between the governments making up the federal system — not

to deter prospective plaintiffs from attempting to vindicate their federal rights in

federal court. |

45a

Appendix B

forth in Monell v. Dept. of Social Services, 436 U.S. 658 (1978),

and the related line of cases. In fact, the City adopted an ordinance

expressly prohibiting the decision that gave rise to the plaintiffs’

constitutional claims. The officials who presided over Goodman’s

and O’Neill’s hearings overlooked that provision of the City Code,

but Philadelphia cannot be held liable for those mistakes.°®

Second, I believe that the district court erred in concluding

that Goodman and O’ Neill were deprived of their property without

due process of law. The City committed such a violation, it

reasoned, by failing to notify the plaintiffs that if they failed to

appear before the Traffic Court prior to a certain date, their only

recourse would be to the BAA.

The BAA is an administrative agency that does not even have

the power to enter a civil judgment. The Traffic Court, in contrast,

rendered decisions determining criminal guilt. Accordingly, and

6. The plaintiffs argue that even if the hearing examiners had complied with the

ordinance and refrained from adjudicating their older tickets. the BAA’s utilization of

a “Code 41” mechanism would have required the agency to make the same

determinations of liability. First, even if Code 41 was relevant to resolving the

substantive issues this case presents, factual disputes over this mechanisms effect and

existence at the time of Goodman’s and O’ Neill’s hearings would preclude a grant of

summary judgment. Second, and more importantly, Code 41 is not important here

because the BAA did not employ it. Goodman and O’ Neill are attempting toestablish

municipal liability based on a policy that the City never followed in its dealings with

them. Their belief that the BAA would have made Code 41 determinations, and that

when that occurred, they would have suffered the same alleged deprivation of due

process, does not give them a viable claim against the City. The official conduct that

resulted in the constitutional harm the plaintiffs allegedly suffered was the hearing

examiners’ erroneous decisions to rule on their older tickets — not the Code 41

mechanism. Under justiciability principles and the standard for municipal liability in

§ 1983 cases, Goodman and O’ Neill cannot pursue a claim based on a rule or policy

that never affected them.

46a

Appendix B

appropriately, the BAA does not provide ticket recipients with all

of the procedural protections and defenses that they could have

relied upon in the Traffic Court. However, nobody has suggested

that the process the BAA does provide in adjudicating ticket

challenges fails to meet constitutional standards. Goodman and

O’ Neill only argue, and the district court only held, that before the

City switched the forum in which ticket recipients would have to

proceed, it was required to provide notice.

I would not accept that argument (and, I gather, neither would

the majority). The City has replaced one constitutionally adequate

process with another. True, someone who surely would have

escaped criminal liability in Traffic Court might not prevail at the

BAA. But everyone who participates in BAA proceedings receives

at least the process that is due before the City takes their property.

The City did not warn Goodman and O’ Neill that they might lose

their access to the Traffic Court; it did, however, provide them with

notice of the parking charges against them and a meaningful

opportunity to respond to those charges before reaching a decision

that they would have to pay their fines. Given these facts, the

plaintiffs have at most suffered a deprivation of process without

due process — not a deprivation of property without due process.

That does not constitute a violation of their Fourteenth

Amendment rights. The Constitution does not require notice and

an opportunity to be heard before all rule changes that might effect

an outcome. So long as the new rules are adequate under due

process standards — and, again, no one has suggested that in this

case, they are not — the Fourteenth Amendment is satisfied. See

Sill v. Pennsylvania State Univ., 462 F.2d 463, 469 (3d Cir. 1972)

(rejecting argument that the University violated students’ due

process rights by subjecting them to disciplinary proceedings

before a specially constituted panel that employed its own

procedural rules); Crane v. Hahlo, 258 U.S. 142, 147 (1928) (“No

one has a vested right in any given mode of procedure; and so long

47a

Appendix B

as a substantial and efficient remedy remains or is provided due

process of law is not denied by a legislative change.” (citations

omitted)); see also Maj. Op. at 5 n.4’

Thus, in my view, while Goodman and O’Neill may have

derived certain advantages from not paying their parking tickets,

see Marion Wink, Women Who Love Men Who Don't Pay Their

Parking Tickets, Cosmopolitan, April 1993, at 136, a viable § 1983

suit is not among them. I would therefore reverse the district

court’s decision and remand the case so that judgment could be

entered in favor of Philadelphia.

IV.

Justice Frankfurter believed that “petty cases,” even more

than hard cases, are “calculated to make bad law.” United States v.

Rabinowitz, 339 U.S. 56, 68 (1950) (Frankfurter, J., dissenting).

“The impact of a sordid little case,” he explained, “is apt to obscure

the implications of the generalization to which the case gives rise.”

Id. This easily qualifies as a petty case. It is a dispute about a few

parking tickets. Collectively, the plaintiffs’ financial stake in the

outcome is $218.00. The generalization to which today’s decision

gives rise, however, is an important and, in my view, misguided

one.

The majority does not and cannot limit its holding to meritless

claims over small stakes. Highly significant constitutional

7. The City makes the additional argument that under Parratt v. Taylor, 451

U.S. 527 (1981), the availability of post-deprivation opportunities to challenge the

hearing examiners’ erroneous decisions provided the plaintiffs with constitutionally

adequate process. Because the BAA did provide the plaintiffs with all the process that

was due prior to rendering its decisions, however, Parratt and other cases addressing

the sufficiency of post-deprivation remedies are irrelevant.

48a

Appendix B

questions do arise in the context of administrative proceedings

addressing seemingly minor issues of purely local concern. Yick

Wo v. Hopkins, 118 U.S. 356 (1886), is one example that comes to

mind. The plaintiffs in Yick Wo challenged a facially innocuous

municipal ordinance that empowered a committee of city officials

to determine who could and could not operate laundry businesses.

The case elicited one of the Supreme Court’s earliest and most

significant expositions of the Fourteenth Amendment’s guarantee

that no state shall deny to any person the equal protection of the

laws. Needless to say, the scope and importance of issues

addressed in administrative proceedings and consequently, the

significance of the legal questions that arise from agency decision-

making has steadily and dramatically increased during the years

since Yick Wo.

Even in cases such as the one before us, where the underlying

constitutional claims are not so gripping, the rule the majority

announces today does not reflect an appropriate balance between

concerns of comity and federalism, on the one hand, and the values

served by the federal courts meeting their responsibility to decide

cases over which they have jurisdiction, on the other — especially

when that jurisdiction has been conferred by legislation intended

to provide plaintiffs alleging that they have been deprived of

federal rights under color of state law with direct access to a federal

forum. Thus, in my view, the majority’s treatment of this petty case

misapprehends even the general principles of “Our Federalism” it

purports to defend.

For these reasons, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

49a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-1378

JOHN O’NEILL; SAMUEL R. GOODMAN, on behalf of

themselves and all others similarly situated

CITY OF PHILADELPHIA; PHILADELPHIA PARKING

AUTHORITY; OFFICE OF THE DIRECTOR OF FINANCE;

BUREAU OF ADMINISTRATIVE OFFICE OF

ADJUDICATION

City of Philadelphia, Office of The Director of Finance and Bureau

of Administrative Adjudication,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 91-06759)

Present: Roth, Lewis and Garth, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the United

States District Court for the Eastern District of Pennsylvania and

was argued by counsel on October 28, 1993.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District Court

all

50a

sppendix B

entered March 30, 1993, be, and the same is hereby vacated and the

cause is remanded to the District Court with instructions to abstain

under Younger v. Harris, 401 U.S. 37 (1971) and to dismiss the

plaintiff’s complaint. Costs taxed against John O’ Neill and Samuel

R. Goodman. All of the above in accordance with the opinion of

this Court.

ATTEST:

s/ illegible

Chief Deputy Clerk

Dated: August 5, 1994

Costs taxed in favor of Appellants as follows:

NE iicitiicatsiaimiatn $ 162.60

Appendix .............0000 $ 534.10

Reply Brief ............... $ 77.80

Docketing Fee........... $ 100.00

PPR niitnnnnn $ 874.50

Certified as a true copy and issued in lieu

of a formal Reissued mandate on September 9, 1994.

Teste: s/ P. Douglas Sisk

Clerk, U.S. Court of Appeals for the Third Circuit.

S5la

APPENDIX C— MEMORANDUM OPINION AND ORDER

OF THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA FILED

MARCH 29, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

NO. 91-6759

JOHN O’NEILL and SAMUEL GOODMAN

CITY OF PHILADELPHIA, et al.

MEMORANDUM

Dalzell, J. March 29, 1993

Plaintiffs John O’Neill and Samuel Goodman have sued to

challenge the 1989 reorganization of Philadelphia’s system of

adjudicating parking violations. Plaintiffs in their second amended

complaint name as defendants the City of Philadelphia (“City”),

the Office of Philadelphia’s Director of Finance (the “Office of

Director of Finance”), and the Philadelphia Bureau of

Administrative Adjudication (“BAA”).!

Plaintiffs claim that the 1989 reorganization violated the

constitutional prohibition against ex post facto legislation,

1. Although counsel for plaintiffs and defendant persist in referring to the BAA

and the Office of the Director of Finance as separate defendants, it is clear they are part

of the City of Philadelphia, and not separate juridical persons. In reality, therefore,

there is only one defendant, the City.

52a

Appendix C

plaintiffs’ due process rights under the Fifth and Fourteenth

Amendments of the United States Constitution, and Pennsylvania

law. Messrs. O’Neill and Goodman seek restitution of all fines,

costs and fees they have paid as a result of the unlawful aspects of

the reorganization, as well as injunctive relief.

On October 15, 1992, we denied plaintiffs’ motion for class

certification. We concluded that maintaining this suit as a class

action was not superior to other available methods for the fair and

efficient adjudication of this controversy. We held instead that a

test case would be far superior to a class action for resolution of this

controversy.

Both parties have moved for summary judgment after

submitting a stipulation of facts. After carefully sifting through

plaintiffs’ many claims, we have found one nugget that warrants

granting relief to plaintiffs, and to that extent we will grant

plaintiffs’ motion for summary judgment and deny defendant’s.

I. Factual Background

The underlying facts of this suit are in all material respects

uncontroverted.

The essence of O’Neill and Goodman’s second amended

complaint is that the City violated their constitutional rights when

a Hearing Examiner of the BAA rather than the Philadelphia

Traffic Court (the “Traffic Court”) adjudicated parking tickets they

received before June 1, 1989. A brief history will highlight the

significance of this change and how it came about.

The Pennsylvania Constitution, Article 5, Schedule 16(s),

authorized the creation of traffic courts throughout the

53a

Appendix C

Commonwealth. 42 Pa. Cons. Stat. § 1321 created the Philadelphia

Traffic Court. Under 42 Pa. Cons. Stat. §1302, the Pennsylvania

General Assembly assigned Traffic Court exclusive jurisdiction

over all summary offenses arising under Title 75 (Motor Vehicles)

and under Local Ordinances enacted pursuant to Title 75. The City

enacted Title 12 of the Philadelphia Code, which established traffic

control rules, including parking violations, and provided for

enforcement.

In 1982, the Pennsylvania General Assembly authorized the

Philadelphia Parking Authority to establish on-street parking

regulations and create a comprehensive system of administration

and enforcement. Pursuant to this enabling legislation, seven years

later the Philadelphia City Council (the “City Council”) adopted

Bill No. 350 (the “Ordinance”) on March 16, 1989. The Mayor

signed the Bill No. 350 six days later. By its terms the Ordinance

adds a new Chapter, 12-2800, et seqg., entitled “Administrative

Adjudication of Parking Violations,” amending Title 12 of The

Philadelphia Code. The Ordinance became effective on June 1,

1989, and granted the Director of Finance authority to adopt

regulations for the hearing and determination of parking

violations, and the imposition of civil penalties (12-2802[1]). The

present action relates only to the retrospective application of this

Ordinance.

To understand plaintiffs’ challenges to the retrospective

application of the Ordinance, it is illuminating to examine briefly

the process of adjudicating parking tickets that existed before the

Ordinance became effective. Between 1982 and June 1, 1989,

original jurisdiction lay with the Traffic Court and dissatisfied

defendants appealed its decisions to the Court of Common Pleas of

Philadelphia County (Exhibit 13, pp. 19-20). During that time, the

Philadelphia Police Department brought tickets to the attention of

the Traffic Court in the form of an information. The Traffic Court

54a

Appendix C

filed the information and generated a summons, ordering

individuals to appear at trials to defend themselves on the criminal

offense for all violations that remained unpaid after eight days (id.

p. 21). If the summons did not elicit a response, the Traffic Court

issued a warrant for the individual’s arrest (id. at 25).

The Ordinance created a period of dual jurisdiction. A person

who had received a parking ticket, citation or summons from the

Traffic Court between October 2, 1987 and June 1, 1989, could

choose to proceed either in Traffic Court or the BAA (122807[8]).?

This option was available until “the Fall of 1990’°, when the

Traffic Court stopped hearing parking ticket eases.

At this point we turn to the events that befell our plaintiffs,

Goodman and O’ Neill. Prior to June 1, 1989, they each received

parking tickets in the City as follows:

Goodman O'Neill

May 16, 1989 May 1, 1989

December 7, 1988 October 10, 1988

December 11, 1987 November 28, 1987

December 11, 1987

February 26, 1987

2. Individuals who received tickets prior to October 1, 1987 were

automatically eliminated from the computer system that recorded delinquent parking

violations because they presumptively qualified for the statute of limitations defense.

3. The parties’ stipulation, which is not an exemplar of lawyers’ precision,

does not advise us of the exact date.

55a

Appendix C

Neither paid the fines, and in accordance with the procedures

described above, the Traffic Court lodged an information and

issued a summons. A summons was served on each stating the fines

and penalties for the offense, with a notice to appear in Traffic

Court on a date certain. Neither Goodman nor O’Neill appeared

for the scheduled hearing, and the Traffic Court periodically

sent notices to them seeking payment (see Exhibit 6 and

Stipulation of Facts J 21).

In November of 1989, Goodman and O’ Neill each received a

“Violation Warning Notice” from the Office of the Director of

Finance (Exhibit 4). This notice informed them that they could

elect to appear before the Traffic Court, as a criminal matter, or

proceed in the Director of Finance’s Bureau of Administrative

Adjudication as a civil action.* One of the many disputes between

the parties centers on this notice. Plaintiffs contend that the notice

the Director of Finance sent was legally insufficient to enable the

recipient to make an intelligent waiver of his or her right to appear

before the Traffic Court.

Goodman and O’Neill took no action in response to this

notice. As a result, each received an “Order of Default” which told

them that the failure to pay the stated amount of fines and penalties

“could result in the City taking additional legal actions against

[them], which could have an adverse effect on [their] property

rights, among other consequences” (Exhibit 11).

4. Ordinance 350 altered the treatment of parking violations from criminal to

civil violations. Until March 7, 1989, the Philadelphia Traffic Court Rules governed

all parking offenses filed with the Traffic Court. Its provisions entitled a defendant to

three rights that are not provided in a BAA hearing: a disposition could not be made

without the personal appearance in Traffic Court of the alleged parking violator (see

Exhibit 5, “Philadelphia Traffic Court Rules,” Rule 5.1 and Rule 6.10); the

defendant’s guilt had to be proved beyond a reasonable doubt; and a two-year statute

flimitati lied

56a

Appendix C

On March 4, 1991, Goodman requested a hearing before the

BAA to adjudicate a ticket he received on February 4, 1991. The

BAA responded by scheduling a hearing for March 18, 1991, and

listed six outstanding violations for disposition at that hearing. At

the March 18 hearing, the BAA listed four additional tickets,

including violations that had occurred before June 1, 1989 (Exhibit

7 and Stipulation of Facts { 15). Counsel for Goodman appeared at

the hearing and objected to including tickets issued before June 1,

1989, on the basis that they were within the Traffic Court’s

exclusive jurisdiction and that Goodman did not consent to the

BAA’s jurisdiction. Moreover, Goodman’s counsel raised the

statute of limitations defense as to all the tickets that were more

than two years old.°

The Hearing Examiner overruled the objections’, apparently

stating that the BAA had jurisdiction regardless of consent, and

that the statute of limitations defense only applied in Traffic Court

which treated parking violations as criminal offenses (see Exhibit

A, Affidavit of Vincent J. Ziccardi J{ 5-9 attached to Plaintiffs’

Memorandum in Support of Motion for Summary Judgment). The

Hearing Examiner determined liability on the ten tickets, resulting

in the dismissal or reduction of some, and assessed a total fine of

$247.10. This fine included $173.00 for tickets issued before June

1, 1989. Goodman has paid his fines.

When O’Neill tried to have three parking tickets listed for

5. The City asserts that anyone who did not qualify for the statute of limitations

defense as of June 1, 1989, lost their right to assert it before the BAA. Since none of

Goodman’ s tickets qualified for the statute of limitations on that date, they remained

on his traffic violation record. It is Goodman’s position that the relevant date for

determining if the City’s actions are time barred is the date that he appeared for a

hearing regardless if that occurred after June 1, 1989. It is not necessary for us to

resolve the merits of this particular dispute to reach our holding.

57a

Appendix C

disposition in the Traffic Court in April of 1991, the court informed

him that it no longer heard parking violation cases (Stipulation of

Facts { 18). Subsequently, O’ Neill requested and the BAA granted

a hearing for August 30, 1991 (Stipulation of Facts q{ 20-21).

O’Neill attended the hearing with his counsel present, raised the

same objections as Goodman, and experienced the same lack of

success. The Chief Hearing Examiner determined liability, and

reduced the assessment of fines to $45.00. To date, O’ Neill has not

paid any of his fines.

On October 30, 1991, plaintiffs filed this action asserting

violation of their rights under the United States Constitution. They

also invoke their rights under 42 U.S.C. §1983 and claim

violations of Pennsylvania state law.

Specifically, plaintiffs’ second amended complaint asserts

five counts. The First Count avers that the City violated plaintiffs’

due process rights, as guaranteed by the Fifth and Fourteenth

Amendments of the United States Constitution, because, at a

minimum, the hearings before the BAA should have entitled

plaintiffs to all the rights available in a pre-organization Traffic

Court proceeding.

The Second Count claims that the City violated plaintiffs’

federal due process rights, as well as the United States

Constitution’s limitation on ex post facto legislation set forth in art.

I, §9, cl. 3 and art. I, §10, cl. 1. Plaintiffs allege that the City

violated these provisions of the federal Constitution primarily

because the BAA did not obtain the plaintiffs’ consent to its

Jurisdiction, as required by the Ordinance, and nevertheless (1)

applied the laws and regulations governing hearings in effect under

the 1989 amendments to violations that had occurred when

exclusive jurisdiction resided in the Traffic Court, and (2) imposed

58a

Appendix C

the 1989 civil burden of proof to cases that remained within the

exclusive jurisdiction of the Traffic Court and, thus, entitled to the

criminal burden.

The second amended complaint’s Third Count alleges that the

City violated state law by exceeding the authority granted by 42 Pa.

Cons. Stat. §345(17) when it amended the Traffic Code by

providing, in §12-2807(8), for the consent of ticket holders to

retroactive application of the amended Traffic Code to pending

violations cognizable in the Traffic Court. They contend that this

was an unlawful extension of the BAA’s subject matter

jurisdiction.®

The Fourth Count asserts that the BAA violated the United

States Constitution’s limitation on ex post facto legislation, as

founded in art. I, §9, cl. 3 and art. I, §10, cl. 1, when it unlawfully

extended the applicable statute of limitations by holding

proceedings on parking violations that were time barred pursuant

to Pennsylvania law, 42 Pa. Cons. Stat. §5553(e). The Fourth

Count further claims that these proceedings also violated 42 Pa.

Cons. Stat. §5553(e) by its own terms.’

The Fifth Count alleges that the Ordinance, 12-2807(4), is a

Bill of Attainder to the extent it subjects plaintiffs’ vehicles to

seizure without a hearing in violation of art. I, § 10, cl. 1 of the

United States Constitution.

6. Because plaintiffs have not pressed this argument in their motion for

summary judgment, we treat this claim as withdrawn at this procedural stage.

7. Plaintiffs did not argue this portion of the Fourth Count, which alleges a pure

state law violation, in their motion for summary judgment; consequently, we treat it as

withdrawn for purposes of resolving the motions.

59a

Appendix C

We have jurisdiction under 28 U.S.C. § 1343.8

II. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is

“genuine” only if there is a sufficient evidentiary basis on which a

reasonable jury could find for the non-moving party. Anderson v.

Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). A factual dispute is

“material” only if it might affect the outcome of the suit under

governing law, id. at 248, and all inferences must be drawn, and all

doubts resolved, in favor of the non-moving party. United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy, 762 F.2d

338, 341 (3d Cir.), cert. denied, 474 U.S. 1010 (1985).

On a motion for summary judgment, the moving party bears

the initial burden of identifying for the Court those portions of the

record that it believes demonstrate the absence of dispute as to any

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

To defeat summary judgment, the nonmoving party “may not rest

upon the mere allegations or denials of tits] pleading, but [its]

response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for

trial.” Fed.R.Civ.P. 56(e). The non-moving party must demonstrate

the existence of evidence that would support a jury finding in its

favor. See Anderson, 477 U.S. at 248-49.

8. We decline the City’s invitation to abstain from exercising jurisdiction

under the principles of federalism enunciated in Younger v. Harris, 401 U.S.37,915S.

Ct. 746 (1971). See Gwynedd Properties. Inc. v. Lower Gwynedd Township, 970 F.2d

1195 (3d Cir. 1992).

60a

Appendix C

As noted above, given that the parties dispute the legal

consequences of admitted public acts, this case is peculiarly

appropriate for resolution by summary judgment.

III. Legal Analysis

A. Bill of Attainder and Ex Post Facto

Plaintiffs’ challenge to the Ordinance as an unconstitutional

ex post facto law or a bill of attainder hinges on whether the fines

and penalties it prescribes are civil or penal in nature.

In United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636 (1980),

the Supreme Court enunciated a two-prong inquiry for

determining whether a penalty is civil or criminal. The first issue is

whether the legislature has evinced, either expressly or impliedly,

a preference for one label or the other. Jd. at 248. Second, where the

legislature has evinced an intention to create a civil penalty, a court

must determine whether the statutory scheme is so punitive either

in purpose or effect as to negate the legislature’s intention. /d. at

248-49. In making the latter inquiry, “only the clearest proof could

suffice to establish the unconstitutionality of a statute on such a

ground.” Jd. at 249 (quoting Flemming v. Nestor, 363 U.S. 603,

617, 80S. Ct. 1367, 1376 (1960)). Finally, the Supreme Court in

Ward found the seven considerations set forth in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554,- 568-69

(1963) helpful in making the second inquiry, noting, however, that

the list is neither exhaustive nor dispositive. Ward, 448 U.S. at 249.

Those factors are

[whether the sanction involves an affirmative

disability or restraint, whether it has

historically been regarded as a punishment,

6la

Appendix C

whether it comes into play only on a finding of

scienter, whether its operation will promote he

traditional aims of punishment-retribution and

deterrence, whether the behavior to which it

applies is already a crime, whether an

alternative purpose to which it may rationally

be connected is assignable for it, and whether it

appears excessive in relation to the alternative

purpose assigned... .

Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted).

In the present case, we find that City Council enacted the

Ordinance unambiguously intending parking infractions to be civil

rather than criminal in nature. The Ordinance added Chapter 12-

2800 et seq. to grant to the Director of Finance authority to

promulgate regulations for the hearing and determination of

parking violations outside of the criminal justice system (12-

2801[3]). In the preamble to the Ordinance, the City Council

expressly recognized that “the current system of parking violation

enforcement within the criminal justice system has resulted in the

improper and inefficient allocation of parking violation

enforcement responsibility . . . [and] unfairness to citizens caused

by the threat and stigma of a criminal sanction” (12-2801[2]).

Specifically, the Ordinance empowered the Director of

Finance to provide “for the imposition of civil penalties, costs and

additional fees . . .” for parking violations in the City (12-2802{1]).

Moreover, the Ordinance states that a person who admits

committing a parking violation “shall... pay the civil fines and

costs, and any additional fees as may be due for failure to answer

[the summons] within the time required” (122806[3]). Finally,

{¥ 12-2809, entitled “Civil Penalties and Costs”, characterizes all

costs and penalties prescribed under Title 12 as non-criminal.

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Appendix C

Based on the foregoing, we conclude that the City Council

explicitly intended the Ordinance to be regulatory in character and

its penalties civil in nature.

Having held that the City had a manifest intent to consider

penalties for parking infractions as civil and not criminal, we next

turn to the second level of the Ward analysis, and apply the

Mendoza-Martinez standards to aid in deciding whether the

content of the Ordinance conforms with the label City Council

gave it.

Unlike many penal provisions, the Ordinance does not require

a showing of scienter. We recognize, however, as plaintiffs

suggest, that the City intends a portion of the fines collected to

serve as a deterrent to potential wayward parkers, a traditional

purpose of criminal provisions. In Gardner v. City of Columbus,

Ohio, 841 F.2d 1272 (6th Cir. 1988), the Sixth Circuit addressed a

similar argument challenging amendments to the Columbus City

Code that also changed parking violations from criminal to civil

offenses. In that case, plaintiffs argued that the penalties were

penal in nature because they had no relation to damage, harm or

cost to the city. They therefore concluded that there could be no

other purpose to which the sanction could be rationally connected,

thereby violating the sixth Mendoza- Martinez factor.

The Sixth Circuit reasoned, and we agree, that while

deterrence may be one aim of the penalties, the other goal is to

defray the cost of providing and regulating parking on urban

streets. The Sixth Circuit concluded that “the fines are part of a

comprehensive regulatory scheme and are not punitive in nature.”

Gardner, 841 F.2d at 1278. Plaintiffs have not proffered any fact

that would distinguish the Philadelphia from Columbus schemes

on this point.

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Appendix C

Moreover, plaintiffs energetically argue that on its face the

Ordinance is unambiguously criminal in nature. In support of this

position, they point out that the penalties the Traffic Code set forth,

before the Ordinance’s amendments, are identical to those

established by the new 12-2809, “Civil Penalties and Costs”.

Plaintiffs note that the only difference is that “the penalties are

increased in most cases by 33%” (Plaintiffs’ Brief In Opposition to

Defendants’ Motion for Summary Judgment at p. 18). Plaintiffs

fail to recognize one other crucial distinction between the present

Traffic Code’s penalties and those of its predecessor. Before the

City Council’s 1989 amendments, the Traffic Code held out the

possibility of imprisonment for violators (see 12-912, amended by

12-912 (1989)). In its present incarnation, the City Council has

eliminated the threat of jail (see §12-912).

On its face, there is not sufficient evidence of the criminal

nature of the Ordinance to override City Council’s unambiguous

designation of the Ordinance as one imposing civil penalties.

Accordingly, we conclude that plaintiffs have not offered the

“clearest proof” that the fines in question are so punitive in purpose

or effect as to negate the express intention of the City Council that

all such fines be deemed civil penalties.

With this analysis as our backdrop, we turn to plaintiffs’

claims that the Ordinance is a bill of attainder or an

unconstitutional ex post facto law. Both of these challenges to 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 n. 30

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(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 (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 (1977) (citing Mendoza-

Martinez, 372 U.S. at 16869).

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 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 (1981) (quoting Cummings v. Missouri,

4 Wall. 277, 325-26 (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

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ultimate facts necessary to establish guilt.’” Jd. at 29 n. 12

(quoting Hopt v. Utah, 110 U.S. 574, 590, 4S. Ct. 202, 210 (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 (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 (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).

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Appendix C

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

(1986), the Supreme Court discussed its holding in Wolff v.

McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (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

9. Weare perplexed by the City’s reliance on Monell since the City’s reading of

it is irreconcilable with the following language of that opinion:

Local governing dodies, therefore, can be sued directly

under § 1983 for monetary, declaratory, or injunctive

relief where, as here, the action that is alleged to be

unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially

adopted and promulgated by that body's officers.

Monell, 436 U.S. at 690 (footnote omitted).

We do not understand how Monell can be read as extending an invitation to federal

courts to plumb the minds of state legislative actors.

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Appendix C

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.” Jd. 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

10. Though Mr. O" Neill never paid his fine, by virtue of the City’s deliberate

actions a judgment exists against him for money, a surely constitutionally-cognizable

event. D.H. OvermyerCo., Inc., of Ohiov. FrickCo., 405 U.S. 174, 185-187,92S.Ct.

775, 782-783 (1972); see also Girard Trust Bank v. Martin, 557 F.2d 386, 389 (3d

Cir.), cert. denied 434 U.S. 985, 98 S.Ct. 612(1977).

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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 (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 (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

11. Plaintiffs raise several due process challenges to the City’s actions.

Because we find the “Violation Warning Notice” violates due process, it is

unnecessary for us to consider these other challenges.

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Appendix C

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.

In accordance with Chapter 12-2800 of the

Philadelphia Traffic Code, for tickets

previously filed with the Traffic Court, you

may elect to request a hearing before the

Philadelphia Traffic Court, as a Criminal

matter, or before the Director of Finance’s

Bureau of Administrative Adjudication as a

civil matter. To request a hearing before the

Bureau of Administrative Adjudication, write

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Appendix C

to the P.V.B., P.O. Box 13850, Phila., PA,

19101. Hearings before the Traffic Court

should be requested at 800 N. Broad Street,

Phila, PA 19130. Be sure to include your name/

address, tickets [sic] number(s), and license

plate number.

Give this matter your prompt attention to avoid

further legal action, including the chance that

further violations could lead to BOOTING or

TOWING of your vehicle.”

The City contends that this disclosure satisfies due process, and

that any appearance before the BAA after its receipt constituted

irrevocable consent to all aspects of the new regime.

To effect a waiver of a constitutional right, it is well-settled

that the waiver must be voluntary, knowing, and intelligent.

Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541

(1975); Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019,

1025 (1938). Moreover, as the Supreme Court stated in words that

are now part of our basic constitutional vocabulary, “waiver is

ordinarily an intentional relinquishment or abandonment of a

known right or privilege,” Johnson, 304 U.S. at 464. The Supreme

Court has instructed courts to “ ‘indulge every reasonable

presumption against waiver’ of fundamental constitutional rights

and... ‘[not to] presume acquiescence in the loss’ ” of such rights.

Id. (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct.

809, 811 (1931)); Glasser v. United States, 315 U.S. 60, 70-71, 62

S.Ct. 457, 465 (1942). While the Supreme Court has never defined

12. It is unnecessary to our analysis to consider the language of the Order of

Default because it does not relate to the election referred to in the Violation Warn.ng

Notice.

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Appendix C

precisely what constitutes a voluntary, knowing, intelligent

waiver, the Court has stated that whether a person has waived a

constitutional right “depends in each case ‘upon the particular

facts and circumstances surrounding that case, including the

background, xperience and conduct” of the waiving party.

Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1883

(quoting Johnson, 304 U.S. at 464) (criminal context).

We do not quarrel with the City’s power to require pre-June 1,

1989, parking violators to make an election between the Traffic

Court and the BAA. Nor do we believe that due process required

the City to make an exhaustive disclosure of all the rights affected

by such anelection. Due process in such a context does not demand

the breadth of disclosure required for a new public issue of

securities. At a minimum, however, due process does require that

the City inform notice recipients of the consequences of inaction.

Nowhere does the notice inform its recipient that not making the

election would automatically place the individual forever in the

BAA’s jurisdiction, and yet that is precisely what happened to

Goodman and O’ Neill.

Neither made the election, but unbeknownst to each the BAA

took their silence to be irrevocable consent to its jurisdiction. In

Goodman’s case, he requested a BAA hearing for a ticket issued in

February 1991. To his dismay he discovered that the BAA would

also include tickets issued before June 1, 1989 in the proceeding

because he never responded to the “Violation Warning Notice.” In

O’Neill’s case, he requested a hearing before the Traffic Court in

April of 1991, but that court informed him that it no longer heard

parking violation cases. O’Neill’s only option was to appear before

the BAA, a fate that he had unwittingly consented to when he did

not respond to the “Violation Warning Notice.” Thus, it cannot be

said that either plaintiff made a voluntary, knowing and intelligent

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Appendix C

waiver of his right to a hearing before the Traffic Court under the

old regime.

Relying on Parratt, supra, 451 U.S. at 527, the City contends

that even if the “Violation Warning Notice” violated due process, it

provided sufficient postdeprivation remedies to Goodman and

O’Neill to meet the requirements of due process. The only

postdeprivation remedy the City points to is the right Goodman

and O’Neill had to appeal the decision of the BAA’s Hearing

Examiner to the Parking Appeals Panel, and then, if desired, to the

Court of Common Pleas (see Defendant’s Memorandum of Law in

Support of Motion for Summary Judgment at p. 13).'° We are not

persuaded that these remedies cure the material omission in the

notice.

This putative postdeprivation remedy does not speak to the

inadequacies of the “Violation Warning Notice” that we have

identified. It does not redress the City’s failure to inform Goodman

13. There is one other procedure the BAA employs that, although the City did

not cite it as such, could be ezgued to be a postdeprivation remedy. When a person

appears before a BAA Hearing Examiner, he or she can request that a particular ticket

not be made a part of the proceeding. When this occurs, it is entered into the computer

data base as a “Disposition 41”, meaning it is “not in the case” (Exhibit B, Dominic

Ceremeli Deposition at pp. 105-06). Whether the City had yet invented a code-41

disposition at the time of Goodman and O’ Neill’s hearings is a point of contention

between the parties. Its existence, however, is inconsequential as a cure for the

deficiency in the “Violation Warning Notice” that we have discussed above. Even

assuming Goodman and O’ Neill could have requested a code-4 1, at the time of both of

their hearings the Traffic Court no longer adjudicated parking violation cases.

Therefore, requesting that the Hearing Examiner keep their pre-June 1, 1989 tickets

out of the BAA proceeding would not have permitted Goodman and O’ Neill to avail

themselves of their right to a Traffic Court hearing, aright they lost without any notice

whatever. Moreover, acode-41 would do nothing to cure the unconsented-to loss of a

two-year limitations period and imposition of no limitations period.

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Appendix C

and O’Neill that their silence regarding whether they wanted to

proceed in the BAA or the Traffic Court would be construed as

irrevocable consent to the BAA’s open-ended jurisdiction. The

right Goodman and O’ Neill had to appeal the Hearing Examiner’s

decision does not restore the rights they had, and unwittingly

forfeited, to appear before the Traffic Court and benefit from the

existence of a limitations period.

C. Relief

Because we find that a procedural due process violation has

occurred, we must fashion a remedy. In this regard, we will take a

page from the Seventh Circuit which has instructed that when a

court finds a due process violation it “should fashion a remedy that

is consistent with the principle that due process is a flexible

concept whose procedural protections depend on the peculiar

circumstances of each case.” Perry v. F.B.1., 759 F.2d 1271, 1281

(7th Cir. 1985) (citing Morrissey, supra, 408 U.S. at 481), rev’don

reh’ g en banc on other grounds, 781 F.2d 1294 (7th Cir. 1986).

In this case Goodman and O’Neill were unconstitutionally

deprived of their right to appear before the Traffic Court rather than

the BAA on tickets issued before June 1, 1989. The question now

becomes, what harm resulted from this deprivation? Throughout

their memoranda plaintiffs seem to suggest that the BAA

proceeding denied Goodman and O’ Neill of three rights that they

would have had in Traffic Court: (1) the requirement that a

disposition could only be made in Traffic Court if the defendant

appeared in person; (2) guilt was required to be proved beyond a

reasonable doubt rather than by a preponderance of the evidence in

a BAA proceeding; and (3) the availability of a statute of

limitations defense for all tickets more than two years old at the

time of the Traffic Court proceeding.

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Appendix C

We are not impressed by the first two harms that plaintiffs

articulate. While it is true that the Traffic Court rules required a

personal appearance and proof of guilt beyond a reasonable doubt

before the Traffic Court could impose liability, it is also true that

the Traffic Court had criminal sanctions at its disposal. For

example, the personal appearance requirement was logical given

that the Traffic Court had the power to issue bench warrants for the

arrest of parking violators who failed to appear at their scheduled

hearings. Moreover, the Traffic Court rules required proof of guilt

beyond a reasonable doubt because the Traffic Court could impose

imprisonment as punishment for a parking violator it found guilty.

The BAA possesses no such powers over a violator’s liberty.

Goodman and O’Neill may have lost these protections, but they

also did not face the sanctions a Traffic Court proceeding could

have imposed on them. For these reasons, as for the first two

injuries that plaintiffs identify, we find the harm of no moment and

therefore not deserving of relief.

The lost statute of limitations defense presents a more vexing

problem for the City. When the City issued the “Violation Warning

Notice” in November of 1989, it contends that “not one of the

tickets which are the subject matter of this lawsuit met the Statute

of Limitation defense” (Response of City Defendants to Plaintiffs’

Motion for Summary Judgment at p. 8). This statement, aside from

being untrue," is also irrelevant. To rehearse once again, the

“Violation Warning Notice” did not inform plaintiffs that their

failure to elect between the two forums would automatically and

irrevocadly place them in the BAA’s jurisdiction. The City’s

defective notice deprived the plaintiffs, without their consent or

14. Clearly Goodman’s February 26, 1987 ticket met the statute of limitations

defense and, perhaps, O’ Neill’s November 28, 1987 ticket did as well, depending on

the exact dite the City sent the “Violation Warning Notice”.

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Appendix C

knowledge, of the possibility of a Traffic Court proceeding with its

attendant opportunity to avoid prosecution after two years. Thus,

to the extent plaintiffs could have asserted the statute of limitations

defense in a Traffic Court proceeding, the City has harmed them.'°

The BAA assessed fines against Goodman totalling $247.00.

Of that amount, $173.00 was for tickets issued before June 1, 1989,

and that is the amount that the City should refund to Goodman

because it was imposed by a tribunal which had not properly

asserted jurisdiction over him and the former statute of limitations

had expired as to all tickets by May 16, 1991. As for O’Neill,

although he has not paid his fines, he does have a judgment against

him for tickets issued before June 1, 1989, in the amount of $45.00.

The City should vacate this liability.

Recalling that this action is also a test case to resolve the legal

questions affecting as many as 2.7 million license holders who had

unpaid tickets outstanding as of June 1, 1989, we must also fashion

commensurate relief for people similarly situated to Messrs.

15. TheCity cites Commonwealth v. Quinn, 405 Pa. Super. 487,592 A.2d 1316

(1991), appeal denied 529 Pa. 619, 600 A.2d 535 (1991) for the proposition that a

period of delay attributable to the accused tolls the statute of limitations. Quinn is

distinguishable for at least two reasons. First, until the Superior Court decided it on

June 17, 1991, the rule in Pennsylvania was that failure to complete proceedings

under 42 Pa. Con. Stat. Ann. §5553(e) absolutely required discharge of the accused.

Commonwealth v. Jannenga, 335 Pa. Super. 77, 81, 483 A.2d 963, 965 (1984).

Second, in Quinn there was an adjudication of guilt within twenty-four days of the

violation, but sentencing was delayed beyond two years because the defendant

ultimately succeeded in perfecting an appeal de novo nunc pro tunc notwithstanding

his failure to appeal within thirty days of the initial finding of guilt. Here, no one

seriously suggests that Quinn would be applied retroactively to violations as far back

as 1987, and by the date Quinn became final all of the subject tickets here had become

unenforceable under the old regime. It is also undisputed that no tribunal at any level

found either Goodman or O’ Neill guilty before June 1, 1989.

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Appendix C

Goodman and O’Neill. Although we will order the City and

plaintiffs to submit their views on class-wide remedies, we

recognize the potentially heavy financial burden such relief may

add to a City whose resources are, to risk understatement, limited

at this time. We will therefore stay this aspect of our Order for the

later of thirty-one days or the date of final appellate review of our

decision.

IV. Conclusion

We have reluctantly reached the result we have explained in

this memorandum. There is no small element of chutzpah on the

part of both plaintiffs that is, in effect, rewarded by this outcome -

they admit, after all, to having repeatedly ignored notices issued

during the old regime. It is well to recall, however, that many

constitutional victories have been won by parties considerably

more odious than parking ticket scofflaws.

To the extent of the foregoing analysis, we shall grant

plaintiffs’ motion for summary judgment and deny defendant’s. An

appropriate Order follows.

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Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVILACTION

NO. 91-6759

JOHN O’ NEILL and SAMUEL GOODMAN

CITY OF PHILADELPHIA, et al.

ORDER

AND NOW, this 29th day of March, 1993, upon consideration

of plaintiffs’ motion for summary judgment and defendant’s

response, and defendant’s motion for summary judgment and

plaintiffs’ response, and for the reasons stated in the foregoing

Memorandum, it is hereby ORDERED that the motions are

GRANTED IN PART and DENIED IN PART in that:

1. With respect to Count I of plaintiffs’ second amended

complaint, defendant’s motion is GRANTED and plaintiffs’

motion is DENIED;

2. With respect to Count II of plaintiffs’ second amended

complaint, plaintiffs’ motion is GRANTED to the extent of

plaintiffs’ due process claim and in all other respects defendant’s

motion is GRANTED and plaintiffs’ motion is DENIED;

3. With respect to Count III and to the extent Count IV alleges

defendants violated state law, plaintiffs’ claims therein are deemed

WITHDRAWN without prejudice;

waa

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Appendix C

4. With respect to the remaining aspects of Count IV,

defendant’s motion is GRANTED and plaintiffs’ motion is

DENIED;

5. With respect to Count V, defendant’s motion is GRANTED

and plaintiffs’ motion is DENIED;

By reason of the foregoing, and as explained in the foregoing

Memorandun,, itis FURTHER ORDERED that:

6. JUDGMENT IS ENTERED in favor of plaintiff Samuel

Goodman and against defendant City of Philadelphia in the

amount of $173.00;

7. JUDGMENT IS ENTERED in favor of plairtiff John

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