*1 CONNECTICUT et DOEHR al. 7, Argued January
No. 90-143. 1991 Decided June *3 Connecti- Attorney General Cohn, Assistant Henry S. the briefs on himWith petitioners. cause argued the cut, B. Arnold General, Attorney Riddle, Nardi Clarine were Attorneys Gen- Assistant Querijero, Carolyn K. Feigin and Calamari. M. Andrew eral, and Faulkner S. Joanne B. Alan man Brian were Wolf brief on her
With * Momson. Parts opinion, delivered White Justice Court.† opinion are of which statute state *4 whether determine requires us case This with- estate real attachment prejudgment authorizes showing extraor- hearing, without or prior notice out requirement without circumstances, and dinary Due bond, satisfies post seeking person hold We Amendment. Fourteenth Clause Process not. it does case, this applied that, as Jr., filed Tavtigian, Tancredi, D. Kirk and J. James Taylor, B. * Allan urg curiae amici as al. et Association Bankers Connecticut brief ing reversal. Kennedy, and Blackmun, Justice Justice, Justice † The Chief Justice and opinion, this II, III of I, Parts join Souter Justice III. I Parts joins Scalia
t—I petitioner 15, 1988, March F. On John DiGiovanni submit- application Superior
ted an to the Connecticut Court for an respondent attachment in the amount of $75,000on Brian K.
Doehr’s home in Meriden, Connecticut. DiGiovanni took conjunction step a civil action for assault and battery seeking against that he was to institute Doehr in the same court. The suit did not involve Doehr’s real estate, any pre-existing nor did have DiGiovanni interest either in any property. Doehr’s home or of his other prejudgment
Connecticut law authorizes attachment of affording prior opportunity real estate without notice or the prior hearing property subject for a to the individual whose prejudgment remedy to the attachment. The State’s statute provides, part: in relevant judge may pre
“The court aor of the court allow the judgment remedy by attorney to be issued an without hearing provided as in sections 52-278c and 52-278d upon by plaintiff verification oath of the or of some com petent probable affiant, that there is cause to sustain (1) validity plaintiff’s pre of the claims and that the judgment remedy requested is for an attachment of real (1991).1 §52-278e property . . . .” Conn. Gen. Stat. complete § text of 52-278e reads: prejudgment remedy hearing.
“Allowance of without Notice to defend- Subsequent hearing ant. and order. Attachment of real officers, (a) municipal judge may The court or a of the court allow the remedy prejudgment by attorney pro- to be an issued without as upon vided sections 52-278c and 52-278d verification oath of the affiant, competent probable or of some that there is cause to sus- (1) validity plaintiff’s tain prejudgment of the claim and that the rem- (2) edy requested property; is for an attachment of real or that there is rea- (A) sonable likelihood that the neither resides in defendant nor maintains place subject office or business this state and is not otherwise (B) jurisdiction court, person by over his has hidden or will hide him- *5 (C) process self so that him cannot be served on or is about to remove him- (D) property fraudulently dispose self or his from this state or is about to to post bond plaintiff to require the does statute The may suffer defendant damages the that payment the insure claim the or wrongfully issued prove the should prove unsuccessful. an required, DiGiovanni As DiGio- paragraphs, one-sentence five In application.
of his submit- previously his forth set facts that vanni stated wantonly and willfully, “I was true; that complaint were ted Doehr”; K. Brian defendant, by the maliciously assaulted fur- my and wrist left battery broke “[s]aid assault that as other eye, right well my as ecchymosis to caused ther money expended sums further “I have injuries”; and hinder, to intent any of his disposed fraudulently has or withheld or fraudulently hidden (E) has or creditors his delay or defraud of his satisfaction liable to be should which or effects money, property his pay to unable ishe stated has or insolvent (F) he is stated has debts they mature. debts as prejudgment “(b) aIf following the defendant on served process include shall IN SPECIFIED RIGHTS HAVE YOU plaintiff: by the prepared notice CHAP- STATUTES, INCLUDING GENERAL CONNECTICUT THE CONCERNING EXERCISE TO WISH MAY YOU 903a, WHICH TER INCLUDE: RIGHTS THESE REMEDY. PREJUDGMENT THIS PREJUDG- THE TO OBJECT TO HEARING A (1) TO RIGHT THE TO SUSTAIN CAUSE PROBABLE OF LACK FOR REMEDY MENT THAT REQUEST TO A HEARING TO (2) RIGHT CLAIM; THE THE DIS- OR MODIFIED, VACATED BE REMEDY PREJUDGMENT THE (3) SUBSTITUTED; THE AND BE BOND A THAT OR MISSED PROPERTY THE OF PORTION ANY TOAS A HEARING TO RIGHT EXECUTION. FROM EXEMPT IS CLAIM YOU WHICH ATTACHED may appearing “(c) defendant which section pursuant granted remedy prejudgment modify the expe- motion such determine hear proceed shall court event de- requested at such determines court If ditiously. plaintiff’s validity the sustain cause probable there fendant If the in effect. remain shall granted remedy claim, prejudgment then remedy cause, prejudgment probable such is no there determines court setting forth court by the issued be shall An order dissolved. shall taken.” it has action
7 App. 24A. The affidavit for medical care and treatment.” foregoing my opinion, “In statement, concluded with probable is cause that facts are sufficient to show that there plaintiff.” judgment rendered Ibid. will be Superior strength of these submissions Court On by “probable Judge, cause to 17, an order dated March found validity plaintiff’s claim” and ordered the sustain the $75,000.” the value of attachment on Doehr’s home “to days later, on March 21. sheriff attached the four Only of the attachment. after this did Doehr receive notice yet complaint, which is He also had to be served with the necessary ordinarily for an action to commence Connecti- Young Margiotta, 429, 433, 136 71 A. 2d cut. v. Conn. (1950). required, the attachment
926 As the statute further right hearing: Doehr that he had the notice informed (1) probable that no cause existed to sustain the to claim (2) request vacated, that the attachment be modi- (3) claim; that a fied, substituted; or dismissed or bond exempt portion property was from claim that some of the §52-278e(b) (1991). Stat. execution. Conn. Gen. against pursue options, Doehr filed suit
Rather than these § claiming that Court, in Federal District 52-278e DiGiovanni (a)(1) under the Due Process Clause of was unconstitutional upheld The District Court the Fourteenth Amendment.2 granted summary judgment favor the statute and of DiGio- 1989). (Conn. Pinsky Supp. Duncan, F. 58 vanni. v. Ap- appeal, panel Court of a divided of the United States
On Pinsky peals Duncan, v. for the Second Circuit reversed. (1990).3 opinion Judge Pratt, wrote the
Judge Mahoney opinion statutory was also of the that the provision attaching actions, real civil without prior hearing extraordinary the absence of circum- disagreed Judge He with stances, was unconstitutional. opinion constitutionally required.
Pratt’s that a bond was Judge holding Newman dissented from the that a prior constitutionally required and, to attachment was like Judge Mahoney, disagreed Judge necessity Pratt on the for a bond. conclusion with the dissent’s accorded views of Supreme previously upheld Court, which had
Connecticut
§52-278e(b)
Dynamics Corp.
Division,
in Fermont
(1979).
Smith,
II
question
process
With this case we return to the
of what
by
enabling
must be afforded
a state statute
an individual to
deprive
the
to
another of his or her
enlist the aid of
State
prejudgment
means of the
attachment or similar
procedure. Our cases reflect the numerous variations this
type
remedy
Family
In
Finance
of
can entail.
Sniadach v.
(1969),
Corp. Bay View,
down a statute that a creditor to effect Wisconsin garnishment wages prior prejudgment of without notice and hearing wage Shevin, In Fuentes v. 407 to the earner. U. S. (1972), process
67 the Court likewise found a due violation replevin provisions permitted that vendors to have state goods through parte application an ex a clerk seized to court Conversely, upheld posting and the of a bond. the Court parte procedure allowing a Louisiana ex lienholder to have sequestered disputed goods Co., T. Mitchell v. W. Grant supra. carefully Mitchell, however, noted that Fuentes was
10 sufficiently background legal and against “a factual
decided require the invalidation not it does . that . different. differ- Those 615. Id., at statute.” sequestration Louisiana post- immediate an provision of Louisiana’s included ences deprivation damages; the option of along hearing that determine a clerk than judge rather that requirement neces- writ; the to showing entitlement clear is a there lien- emphasis on an and affidavit; sity a detailed alienation or waste preventing interest holder’s Georgia In North Id., 615-618. at property. encumbered Finishing, (1975), the S. 419 U. Inc., Di-Chem, v. Inc. garnishment statute parte exan again invalidated Court also prior but notice provide for only to failed not setting out affidavit a detailed bond, require a failed prompt magistrate, or a neutral determination claim, hearing. Id., at 606-608. postdeprivation “underscore cases These conception awith a technical legal rules, some
unlike circumstances.’” place and time, unrelated content fixed & (quoting supra, Eldridge, at Cafeteria v. Mathews (1961)). 886, 895 McElroy, U. S. Workers Restaurant remedy deci- prejudgment upon our drew Mathews, we In government when process is due what to determine sions initiative. its own deprivation on effect seeks itself familiar the now analysis resulted That 334. S., U. private in- of “the requiring consideration inquiry threefold risk of “the action”; by the official affected be will terest through proce- interest deprivation of such erroneous any, additional value, if probable used, dures *9 inter- lastly “the Government’s safeguards”; and substitute admin- and the fiscal and involved including function the est, procedural or substitute additional burdens istrative Id., at 335. entail.” would requirement but similar, inquiry is Here the disputes be- apply ordinarily remedy statutes
judgment and an individual between parties than rather private tween government. designed Such enactments are to enable parties procedures one of the to “make use of state with the significant they overt, assistance officials,” of state undoubtedly enough involve state action “substantial implicate the Due Process Clause.” Tulsa Professional (1988). Pope, Services, Collection Inc. v. 485 U. S. any increasing procedural
Nonetheless, guards burden that safe- primarily government, entails affects not the but the party seeking property. control of the other’s See Fuentes supra, dissenting). Shevin, J., 99-101 For (White, type inquiry requires, case, therefore, the relevant private Mathews, as in first, consideration of the interest prejudgment that will be affected measure; an second, deprivation through examination of risk of erroneous procedures probable under attack and the value of additional safeguards; or alternative third, Mathews, contrast to principal party seeking attention to the interest of the prejudgment remedy, regard any with, nonetheless, due ancillary government may providing interest the have in procedure forgoing providing greater or the added burden of protections. determining
We now consider the Mathews factors in adequacy procedures regard of the us, before first with to the safeguards prior hearing, of notice and a and then in relation protection to of a bond.
1—1 f—I I—1 agree Appeals We with the Court of that in- significant. prop- terests that attachment affects are For a erty ordinarily Doehr, owner like clouds im- title; pairs ability property; to sell or otherwise alienate the any rating; obtaining taints credit reduces the chance of equity mortgage; place home loan additional and can even existing mortgage in technical default where there is an insecurity deny any clause. Nor does Connecticut consequences these occurs.
12 do effects correctly points that these out State
Instead, the deprivation permanent physical, complete, ato amount not tempo- perhaps impact less than property; their real of wages. See goods or deprivation of household rary total But 613. S., Mitchell, U. at 416 supra, 340; at Sniadach, deprivations only extreme such that held never has Court Warley, 245 v. Buchanan See process concern. trigger due that contrary, show (1917). cases our To the 74 60, S.U. rights property impairments to partial temporary or even entail are encumbrances similar liens, and attachments, doubt, Without protection. process due merit sufficient enforcing as attachments, creating and procedures for state process.” due subject strictures to the “are liens, with 80, 85 S. Inc., 485 U. Center, Heights Medical v. Peralta Hodge Muscatine v. supra, 604; (1988) Mitchell, (citing (1905)).4 281 276, County, U. S. 196 Appeals agree the Court
alsoWe is sub- permits here the State deprivation that of erroneous depri- premise a statutes By definition, attachment stantial. contingency factual property on one ultimate —the vation may the defendant plaintiff which damages award 94, Morgan, U. S. Ownbey 256 satisfy. v. See able to not Dam- Remedies: Thompson Sebert, (1921); & J. R. 104-105 (1983). § attachments For 5.01 Equity Restitution ages, Hanson’s, Inc., Inc. v. Spielman-Fond, summary affirmance 4 Our District Spielman-Fond, In (1974), not control. does 901 417 U. S. taking to the amount lien did filing of mechanic’s held Court 1973) (Ariz. 997, 999 Supp. F. interest. property significant aof enjoy does not disposition curiam). summary court) A (per (three-judge byof disposed merits on the argued a case value precedential full (1974). The Jordan, S. 415 U. Edelman opinion. a written affirmance basis for an alternative presented Spielman-Fond facts lien statute us, mechanic’s case before any Unlike event. in the interest pre-existing have creditor required Spielman-Fond below, height explain As we Supp., at 997. F. at issue. up ground provide a can circumstances in certain interest ened 15. Infra, at suspect. otherwise that are holding procedures *11 judgment, that this determi- before Connecticut mandates procedural inquiry nation be made means of a that asks validity probable “there cause to sustain the whether is §52-278e(a) (1991). plaintiff’s the claim.” Conn. Gen. Stat. validity in
The statute elsewhere defines the of the claim judgment in terms of the likelihood “that will be rendered § plaintiff.” the matter favor of the Conn. Gen. 52- Stat.
278c(a)(2) (1991); Ledgebrook Condominium Assn. v. Lusk (1977). Corp., 60, 172 376A. 2d 63-64 What 577, 584, Conn.
probable context, however, cause means remains ob- initially position, the scure. The State took as did the dis- plaintiff requires that below, sent the statute to show the objective likelihood of the suit’s success. Brief for Petition- (Newman, Pinsky, 12; 2d, J., ers 898 F. at 861-862 dissent- ing). citing ambiguous provi- state reads Doehr, cases, requiring plaintiff as than that a demonstrate a sion no more subjective good-faith belief that the suit will succeed. Brief Respondent Ledgebrook Assn., 25-26. for Condominium supra, Nedovich, 584, 2d, 63-64; 376 A. at Anderson v. (1989). App. argu- 85, 948,
Conn. A. 2d At oral position argue ment, the State shifted its that the statute requires something plaintiff stating akin to the a claim with sufficient facts to survive a motion to dismiss. pre- need not
We resolve this confusion since the statute great deprivation any sents too a risk of erroneous under interpretations. inquiry these If statute demands into sufficiency complaint, plaintiff’s or, less, of the still good-faith complaint requirement belief that the is sufficient, complaint permit of a and a affidavit would factual court to inquiry make these minimal determinations. But neither ad- equately deprivation. reduces the risk of erroneous Permit- ting merely a court to authorize attachment because the plain- liable, is believes the defendant because the facially complaint, permit tiff can make out a valid would deprivation of the defendant’s when the claim would jury, allegations on fail to convince a when it rested factual which but of action cause to state sufficient were good-faith mere aof case dispute, inor would defendant claima state complaint failed when even standard, un- potential granted. The could upon relief which self-evident these situations warranted absent process due requirements of satisfy the great to too countervailing consideration. any demonstrate, plaintiff to requires the provision if Even judg- to believe probable cause judge find, risk plaintiff, the favor rendered bewill
ment *12 and shows, the record As case. in this substantial was error and be, need only affidavit a skeletal concedes, State as the judge reviewing nor- urges the that The State filed. was, the that concedes well, but complaint as mally the reviews the that conclusory. is self-evident It may be also complaint concerning like- assessment no realistic make judge could self- one-sided, upon these based success an action’s of lihood of Court as And conclusory submissions. serving, and alleged assault, involving an this like case in a Appeals said, plaintiff’s ver- only give would affidavit a detailed even determining the existence Unlike the confrontation. of sion concern not does issue payments, delinquent or a debt of to themselves lend that uncomplicated matters “ordinarily like- at 609. S.,U. Mitchell, documentary proof.” can “fairness that illustrates results error of lihood of facts determination by secret, one-sided rarely obtained been has instrument n]o [And better rights .... of decisive jeopardy person give a arriving than truth at devised opportunity against him the case of notice loss of serious McGrath, Refugee Comm. Anti-Fascist Joint it.” meet concurring). (Frankfurter, (1951) J., 123, 170-172 U. S. adequately do afford does the State safeguards What also statute points out Connecticut risk. reduce adversary hear- postattachment “expeditiou[s]” provides an § notice 52-278e(c);5 § 52-278e(b); for such ing, hearing, § review of an decision, adverse and a dou judicial 52-2781(a); action if the is ble suit commenced damages original without 52-568(a)(l). § cause, Similar considerations were probable Mitchell, where we Louisiana’s present upheld sequestra the lack tion statute notice and despite predeprivation Mitchell, But in had a vendor’s lien to hearing. plaintiff . the risk of error was minimal because the likelihood
protect, involved matters that lent them recovery uncomplicated S., selves to 416 U. documentary proof, 609-610, was a bond. None of put these fac required up the need for a tors diminishing predeprivation hearing in this case. It is true that a later ne present hearing might cause, but this would presence probable not cure gate that an earlier temporary deprivation have might “The Fourteenth Amendment draws no prevented. bright 50-day lines around three-day, 10-day deprivations Any significant property by State is property. taking Fuentes, of the Due Process Clause.” purview within S., 407 U. at 86.
5 vigorously dispute a defendant can in parties The whether fact receive prompt hearing. practice pre Doehr contends that the State’s rules of a any post- filing including vent the of motion the mandated motion — complaint, hearing the return date on the which in attachment this —until (1988). § days after Practice Book 114 ease was 30 service. Connecticut days elapse state law at least must between service on the de Under (1991). § 52-46 fendant and the return date. Conn. Gen. Stat. The State postattachment hearing upon request. available counters that the is See Smith, Division, 393, Dynamics America v. Corp. Fermont 178 Conn. of (1979) (“Most 397-398, important, 423 A. 2d the statute affords to property opportunity attached the the defendant whose has been to obtain postseizure hearing prejudgment remedy at which the an immediate will proves probable moving party the cause to sustain the be dissolved unless claim”). assume, deciding, validity hearing of his We without that the is procedures prompt. assumption, provide the State’s fail to Even on safeguards against deprivation of the in- adequate the erroneous at stake. terest ' ex anof in favor interests the Finally, conclude we plaintiff, the of the interests particularly attachment,
parte The here. consideration supply such to minimal too are when real estate existing in Doehr’s interest no plaintiff had attaching the only interest His sought attachment. the he satisfy his availability to of assets to ensure property was Yet his action. of merits prevailed on judgment he if or transfer to about was Doehr allegation that nowas there during the any action other take or estate real his encumber un- estate his real render would action pendency of recognized have cases judgment. Our satisfy a available exigent circum- anbe would supported claim properly such hearing after until any or notice postponing permitting stance supra, 609; Fu- at Mitchell, See effected. is Absent at 339. S.,U. Sniadach, 395 90-92; supra, at entes, attaching plaintiff’s interest however, the allegations, such burdening Doehr’s own- justify the property does likelihood determine rights ership without recovery. may government interest No any rights of protecting interest substantive State’s rights weighty those than any more plaintiff cannot de minimis. is plaintiff’s interest Here
themselves. finan seriously plead additional cannot the State Moreover, involving predeprivation hear burdens or administrative cial post- provide immediate already claims ings it when (c) §§ 52-278e(b)and hearing. Stat. Gen. Conn. deprivation at 83. 2d, A. 397-398, Conn., (1991); Fermont, 178 analy- support practices our contemporary Historical remedy at com- unknown a Prejudgment attachment sis. Lon- origin to the Custom its “it traces Instead, law.
mon goods money might attach a creditor under which don, or in cus- hands plaintiff’s own either the defendant mayor’s court or by proceedings in the person, tody a third *14 104. Gener- Ownbey, atS., 256 U. court.” sheriff’s in the England both measures speaking, attachment ally country had several limitations that reduced the risk of erro deprivation permits. Although neous which Connecticut at ordinarily require prior tachments did not notice or a hear ing, they usually only were authorized where the defendant place had taken or threatened to take some action that would plaintiff’s potential jeopardy. the satisfaction of the award (1866) §§ 40-82 by See C. Drake, Law of Suits Attachment, (hereinafter Drake); 1 Shinn, R. Attachment and Garnishment § (1896) (hereinafter Shinn). Attachments, more generally over, were confined to claims creditors. Drake § Appeals §§ 9-10; Shinn 12. As we and the Court of have disputes readily noted, between debtors and creditors more parte lend themselves to accurate ex assessments of the mer battery its. Tort actions, like the assault and claim at issue supra, Finally, Mitchell, do not. here, See at 609-610. as historically we will discuss below, attachment statutes re quired plaintiff post that the a bond. Drake §§ 114-183; § Shinn 153. appears suspect light
Connecticut’s statute even more practice. survey pro current A of state attachment visions re- nearly every requires preattachment veals that State either a hearing, showing exigent of some circumstance, both, be- permitting place. Appendix fore an attachment to take See opinion. Twenty-seven to this States, as well as the District permit only Columbia, attachments when some extraordi- nary present. preattachment circumstance In such cases, hearings required postattachment hearings are not but are provided. permit pres- Ten States attachment without the require prewrit hearings ence of such factors but unless one of those factors is shown. Six States limit attachments extraordinary cases, circumstance but the writ will not issue prior showing to a unless there is a of some even compelling always require more condition.6 Three States State, Pennsylvania, One has not had an attachment statute or rule Savings Jonnet v. Dollar Bank since the City, New York decision (CA3 1976). F. 2d 1123 *15 Washington, Connecticut, and Only hearing. preattachment hearing prior a without attachments authorize Rhode Island heightened any purportedly involve do not that in situations permit States Even those plaintiff’s interests. threat to types Rhode only of cases: certain deprivations parte ex equitable; Connecti- only claim when so Island does is to be at- only estate real Washington when sodo cut Conversely, requires Washington a bond. even tached, and to longer attachments part confine no most for the the States only increases development, however, This claims. creditor limitations. importance the other require- exigency any given imply that to not mean doWe attack. from constitutional protects ment statutory have we sur- measures suggest that do we Nor problems other process or necessarily due free of veyed are how- believe, general. We do infirmities constitutional our confirm the States all procedures of almost ever, that failing to provision us, before the Connecticut that view requiring a hearing least without preattachment provide a clearly short of falls exigent circumstance, showing of some process. of due the demands
IV A issue, reach the majority the Court does Although a I deem it O’Connor, Stevens, Marshall, Justices requires process also due whether appropriate to consider security to re- in addition other post or a bond exigency.7 showing of some quiring respondent by a advanced a contention not address Ordinarily we will re without judgment, under rights or her enlarge his that would Trans World Air g., E. certiorari. cross-petition filing spondent (1985). the Court 111, 119, Here Thurston, n. 469 U. S. lines, v. Inc. 52-278e(a)(1) due § violates argument Doehr’s rejected Appeals Nonetheless, bond. preattachment failing mandate process us “to consider prompted past have in the considerations involves case McCarty, 468 Berkemer by respondent.” highlighted question impairments property rights noted, As that attach process protection. ments effect merit due Several conse quences can severe, such as default of a homeowner’s mortgage. present only In the it need context, be added *16 repeatedly recognized utility that we have of in a bond protecting property rights by affected the mistaken award prejudgment of remedies. 419 Di-Chem, S.,U. at 611 610, (Black (Powell, concurring judgment); in J., id., at 619 dissenting); Mitchell, mun, J., S., 416 U. at 606, n. 8. danger bond,
Without a at the time of attachment, the that property rights may wrongfully deprived these remains unacceptably high safeguards hearing even with such as a exigency requirement. especially ap- a bond need for is parent extraordinary justify where circumstances an attach- plaintiff’s parte ment with no more than the ex assertion of a already process claim. We have discussed how due toler- generally permit, imper- ates, and the States the otherwise erroneously depriving missible chance of the defendant in light heightened plain- in such situations of the interest of the postattachment hearing, tiff. aUntil a however, defendant protection against damages has no sustained where no ex- traordinary plaintiff’s circumstance in fact existed or the like- recovery protection lihood of was nil. Such is what a bond supply. can Both the Court and its individual Members have repeatedly requirement play found the of a bond to an essen- reducing great degree tial role what would have been too precisely type Mitchell, risk this of circumstance. (1984). 420, 435-436, First, shown, 23 U. S. n. as our cases have the no- hearing question question tice and and the are bond intertwined and can “[wjithout fairly Thus, general be considered facets of the same issue. strain, position respondent
undue taken before this might Court. . . argument support judgment be characterized as an of the below” insofar hearing as a notice discussion of cannot be divorced from consider- Ibid. Second, aspect prejudgment ation of a bond.
“plainly attention, regard warrants our and with to which the lower courts Third, Ibid. guidance.” perhaps importantly, are need of “and most Ibid. parties argued question.” both have briefed 20 (Powell, J., 613 Di-Chem, S., at U.
supra, 619; at J., dissent- (Blackmun, id., at in judgment); concurring dissenting). J., (White, Fuentes, S., at U. ing); A defendant’s here. end not does a bond need But has there when even risk undue at remain rights like- plaintiff’s to determine hearing adversarial an been assessment initial court’s best, At recovery. lihood educated an more than produce cannot case party’s each when, true especially This will win. to who as prediction predic- accurate any makes claim the nature here, as supra, In conse- Mitchell, 609-610. See elusive. tion probable-cause proper under full even a quence, having from defendants many prevent would standard of suits pendency during impaired homes to their title justifies ultimately contingency in the result never Attach- plaintiff. to the award namely, impairment, such *17 concern. this reflect books on the currently ment measures despite bond a require plaintiff’s handful States a All but (for major- the vast before, or either affording also an circumstances) after, soon extraordinary under only ity, this opinion. to Appendix See place. takes prejudg- of other feature common similarly been Bonds have or whether considered, have that we remedy procedures ment Ownbey, See hearing. also included procedures these supra, Fuentes, 6, 73, n. at 1; n. 101-102, S., at 256 U. Di- supra, n. Mitchell, 6; and 606, at 81-82; 7,n. 75-76, supra, 608. 1, n. Chem, 602-603, for suits remedy damages its double stresses State Conn. Gen. cause. probable without commenced are make however, fails remedy, 52-568(a)(1).8 This §
Stat. 8 568(a)(1) provides: Section 52— com- any or civil action prosecutes commences who “Any person others, or asserts'a name of name, or the another, his own against plaint by an- prosecuted complaint commenced action any civil defense dam- person double other cause, pay such shall (1) probable without other
21 up meaning for the lack of a bond. As an initial matter, “probable provision cause” is no more clear here provision than it was in the attachment itself. Should the plaintiff’s good adequacy term mean the or the facial faith complaint, remedy clearly A insufficient. defend deprived ant who was where little or no there was likelihood plaintiff judgment that the would obtain a could nonetheless only by proving type recover some of fraud or malice or showing plaintiff that the had to state a failed claim. Prob persist plaintiff’s permits if lems even the ultimate failure re covery. At best a defendant must await a decision on the § plaintiff’s complaint, assuming merits even that a 52- 568(a)(1) may brought Hydro action aas counterclaim. Technologies, Connecticut, Air Inc. v. Inc., Versa 99 (Conn. 1983). 111, F. R. D. Settlement, under Connect precludes seeking damages remedy, icut law, a fact that encourages the use of as a attachments tactical device to pressure opponent capitulate. Levy, Blake v. (1983). attorney’s 257,
Conn. A. 2d 52 An advice that probable there is cause to commence an action constitutes a complete if defense, even the advice was unsound or errone Weil,
ous. Vandersluis 353, 361, 176Conn. 407 A. 2d (1978). Finally, guarantee original there is no that adequate satisfy will have assets to an award that may the defendant win. any appreciable against
Nor is there interest a bond re 52-278e(a)(1) quirement. require plaintiff Section does not *18 exigent any pre-existing to show circumstances nor interest property facing party in the attachment. A must show more subjecting oppo than the mere existence of a claim before an prejudgment proceedings carry significant nent to that a risk deprivation. supra, Mitchell, of erroneous See 604-609; at supra, Fuentes, Sniadach, at 90-92; S., 395 U. at 339. (2)
ages, cause, probable or without unjustly and with a malicious intent person, pay vex and trouble such other damages.” shall him treble
B to consider compels of us four foregoing discussion Our hearing safe- other or for a need excuses a bond whether pro- augment the is needed altogether. a bond If guards postattachment hear- by preattachment and afforded tections safeguards these renders a bond that ings, arguably follows it unconvincing, however, for is unnecessary. conclusion That that but undo bonds could that harms ignores certain it concerning attachments The law prevent. hearings would an encum- to suffer required defendants rarely, ever, if has any prior without is concluded case until title bered unwarranted. was the attachment opportunity to show pro- importance emphasized repeatedly have cases Our very hearing least. at postdeprivation prompt viding a at 606-607. S., Di-Chem, 419 U. S., 606; Mitchell, U. pre- requires expressly moreover, one,
Every but State pro- hearing to determine postattachment or attachment priety attachment. of an hear- postattachment prompt necessity least for at
The compensated at right to be because ing is self-evident provable for all loses, if the case, the end inadequate to redress attachment injuries caused an had avoided been have that could harm inflicted, the harm an immediate An individual early held. been so, do neither can opportunity to sell or need opportunity. satisfy or recreate need nor otherwise equity loan parent of a home in need applies ato The same seeking entrepreneur to start a education, for a child’s rating, strong credit strength an otherwise on the business disruption hav- might face simply who a homeowner extent placed default. in technical mortgage ing length suit. of the grows with the moreover, harms, these Connecti- suits that civil argument indicated Here, oral completion. years for up to seven commonly to four take cut require statutes Many Arg. state 44. Oral Tr. of *19 anywhere equivalent of a the amount bond be from the g., to twice the amount the See, seeks. e. Utah 64C(b). Rule of Civ. Proc. These amounts bear no relation might assuming to the harm the defendant suffer even money damages up foregoing disruptions. can make assumption It be clear, however, should that such an is fun- damentally sufficiently flawed. Reliance on a bond does not account for the harms that flow from an erroneous attach- reducing ment to excuse a State from that risk means of a timely hearing. dispense hearing
If a cannot bond serve to with a imme- diately after it attachment, neither is sufficient basis for providing preattachment hearing a in the absence of exi- gent any hearing circumstances even if in event a would be provided days a few later. The reasons are the same: a wrongful injury fully attachment can inflict that will not by recovery prompt postattach- redressed on the bond after a hearing ment determines that the attachment was invalid. history contemporary practices support more,
Once Historically, our conclusion. attachments would not issue showing extraordinary without a even circumstances though plaintiff invariably required bond was almost in ad §§ dition. Drake 4, 114; Shinn 153 all §§ 86, Likewise, but .
eight currently require posting States of a bond. Out of majority, preattachment requires this 42-State all but one hearing, showing exigency, of some both, and all but one expressly require postattachment hearing when an attach parte. Appendix opin ment has been issued ex See to this testimony point ion. This underscores the that neither a extraordinary nor an circumstance limitation elimi nates the need for a bond, no more than a bond allows waiver protections. other these To reconcile the interests of the plaintiff accurately, process generally defendant and the due requires all of the above.
V remedy provision, prejudgment Connecticut’s Because requirements 52-278e(a)(1), § violates Stat. Gen. Conn. with attachment authorizing prejudgment process of due judgment of Court hearing, the prior notice out that court is remanded case affirmed, and Appeals is opinion. proceedings consistent further so
It is ordered. THE COURT OF TO OPINION APPENDIX Statutes Attachment Prejudgment Attachment Exi- Preattach. Only Preattach. Hrg. Even in gent Hrg. Circs.; Required Postattach. Bond Exi- Most No Preattach. Exi- Unless Hrg. gent Required Required Circs. Hrg. gent Required Circs. x x
Alabama Alaska always required. X hrg. Preattachment x x Arizona x x Arkansas x x California x x Colorado estate) Connecticut (or real X unless x x Delaware xx DC x x
Florida x x Georgia Hawaii always required. X hrg. Preattachment x x Idaho x x Illinois x x Indiana x x Iowa x x Kansas x x Kentucky ¡X x x Louisiana x Maine Maryland
x X x/o1 x Massachusetts Michigan *21 Minnesota Mississippi X
x X x Missouri X
Montana X X
Nebraska X X x
Nevada X Hampshire x
New Jersey x/o x New Mexico New X X York
New X X
North Carolina X X Dakota
North X X Ohio X X x Oklahoma X Pennsylvania Oregon Rhode Island X Preattachment Rescinded (but if equitable light hrg. of 530 always claim) P. 2d required. X [1123] (CA3 x/o 1976). Carolina South X X X Dakota South X X X Tennessee X2 X X Texas X X X Utah X X X x Vermont X may be bond that a indicates Required” column “Bond An “x/o” court. of the required at the discretion at circumstances, attachment quash the certain may, under The court hearing. request without the defendant’s Attachment Preattach. in Exi- Only Preattach. Hrg. Even gent Circs.;
Hrg. Required Postattach. Bond Exi- Most No Preattach. Exi- Unless Hrg. Required gent Required Circs. Hrg. gent Required Circs. XX Virginia X X3 Washington X claim) a contract on (except estate for real Virginia XX X West XX X Wisconsin Wyoming XXX seeks in which in situations except required A bond efforts, cannot diligent who, after defendant of a real attach served. Black Justice whom Rehnquist, Justice Chief in the concurring part concurring joins, mun judgment. Connecticut Court agree with I satisfy fails ante, case,” applied to “as
statute, *22 I Amendment. Fourteenth the of Clause Process Due the opinion. Unfortu- of its III II, and join I, Parts therefore itself to confine opinion not does the of nately, remainder the disquisition lengthy upon a enters case, but of facts the satisfy required to safeguards are of combination to what as I Court. the not before cases hypothetical process due join IV. Part not do therefore statute Connecticut points out, the opinion the Court’s As for a but claim, merely creditor’s for attachment allows opportunity for battery; no it affords and assault of tort claim requirement no hearing; contains it predeprivation the on effort as such circumstances,” “exigent there required is no bond assets; conceal defendant part the of in which one attached property the plaintiff; and the from opin- Court’s interest. pre-existing no plaintiff has
27
ultimately
my
when it bases its hold-
is,
view,
ion
correct
ap-
ing
unconstitutionality
statute as
of
of the Connecticut
Family
Corp.
plied
Finance
our
of
here on
cases Sniadach
(1969);
Bay View,
Shevin,
Fuentes v.
407
(1974), Di-Chem, Inc., North Inc. v. (1975). I that the fol- But do not believe result U. S. inexorably opinion suggests. All of as the Court’s lows so personalty deposits or chat- the cited cases dealt —bank property physical seizure of the tels—and each involved the deprived of use. These so that the defendant was its itself, something ju- represented of a revolution cases, which procedural process, placed risprudence due substantial of by which creditors could obtain a lien limits on the methods prior judgment. But in all of of a debtor on the assets possession deprived the use and of them the debtor was of present property. In case, hand, on other Con- prejudgment statute, on real necticut’s plaintiff, incipient lien for the does not de- secures an which possession property. prive of the use or of the defendant opinion ground, I therefore breaks new The Court’s emphatically point does, than the Court out, more would today’s holding. Spielman-Fond, In Inc. v. Han- limits (Ariz. 1973), Supp. the District son’s, 379 F. Inc., filing of a mechanics’ lien did not cause held that the Court significant property deprivation interest of a summarily affirmed that decision. 417 U. S. owner. We (1974). summary courts have read this affirmance Other property, imposition a lien real the mere on to mean that enjoyment the owner’s use or does not disturb which proce- property calling property, deprivation is not agree safeguards. process Court, I with the how- dural due significant analysis deprivation upon here is a ever, that *23 posses- though in undisturbed the owner remains one, even property Doehr, like attachment ordi- a owner sion. “For ability narily impairs or the to sell otherwise title; clouds rating; any the reduces credit property; taints the alienate equity mort- additional obtaining loan or a home of chance mortgage existing in technical place gage; can even insecurity at 11. Ante, clause.” is an there default where relating to system real of title records elaborate the Given property need not a lienor prevails States, in all of our which belonging property ato real possession of or use obtain impair him. to significantly its value in debtor order supra, the was, as there Spielman-Fond, Inc., inBut basis avail- an alternative points ante, 4,n. out, Court Arizona decision. of that affirmance Court for to this able unpaid mechanics pre-existing in favor of recognized lien a supplies which labor had contributed who and materialmen property. The improvements to real incorporated in were ultimately very property upon the a lien such existence of present the distinguishes from those cases posted or noticed pre-existing the interest plaintiff had no one, where sought Materialman’s to attach. property which he real property to in real award an interest lien statutes mechanic’s suppliers labor, and to their have contributed who workers improvement real material, for have who property. furnished can be re- material nor labor neither Since realty, part this is it has become claimed once who by or small businessmen only workmen which method may property improvement to the contributed have defaulted remedy against who has owner given To re- materials. pay and the promise labor his on before the or bond any quire court of a contested sort purpose largely defeat the would takes effect of lien notice statutes. these summary rely part our af- on in their brief
Petitioners (1983). That Williams, 464 U. S. Bartlett v. firmance presented question pendens, which the a lis involved case procedure be valid could such whether was this Court af- only protection owner land to the afforded when hearing. postsequestration pendens awas lis fected
n rem- well-established, traditional pendens ais lis A notice of creditor) judgment (usually who whereby plaintiff a edy property which in interest brings an to enforce an action pendency of such gives of the notice title has the defendant he the interest which parties; notice causes the third action to fil- of the to the date back to relate successful, if establishes, filing an will have notice pendens. of such ing The the lis property, ability the upon to alienate the defendant’s effect security the of title to the basis on additional to obtain simply give pendens is the lis property, the effect but sought remedy being lawsuit the the world of to the notice right in pendens no additional creates itself lis itself. The simply plaintiff, allows part but property on the pending in which is parties lawsuit to know that third right. Here, too, seeking such plaintiff to establish is prop- already interest claims fact that distinguishes erty lawsuit to enforce he seeks which employed in from the Connecticut class of cases present case. development law; in the holding significant Today’s is a dealing cited the Court’s only real cases Heights Center, Inc., 485 U. S. Medical opinion, v. Peralta County, (1988), Hodge 196U. S. Muscatine and 80, 85 in which (1905), sales foreclosure of lien arose out proper no- entitled to was question the owner whether was compare dramatically we change when reflected The tice. of Justice statement
today’s casual almost with the decision & Brothers writing Court a unanimous for Holmes, Coffin (1928): 29, 31 S. Bennett, 277 U. v.Co. alleging parties allow
“[NJothing than to is more common by at- in advance to establish to be creditors themselves upon result dependent its effect a lien tachment suit.” of the case in that debtor only to the protection accorded liability postdeprivation in a right his to contest
was proceeding. unnecessary, plural- believe, I for the
It is both unwise ity proceed, of the IV, in Part from its decision as it does hypothetical situations it to discuss abstract case before *25 dealing especially are so where we it. This is not before recog- which, as Court the Due Process Clause with conception legal not a technical rules, “‘“unlike some nizes, place circum- time, unrelated to and a fixed content in case it true at 10. And is even more stances,”’” ante, by involving which the limits on the methods constitutional property; may in or create interests in real transfer States may damage, but those dicta do little law, other areas of enjoy opinions often do not insure titles or write title who luxury holding. distinguishing dicta and detween process the Court con- elements of due with which The two requirements and of in Part of a bond cerns itself IV—the upon analysis vague prove “exigent so circumstances”— only unnecessary, particu- but not discussion is not that the larly and condi- knows what the terms useful. Unless one requirement in of a “bond” be, a bond are to tions of by The amount to be secured the bond means little. abstract there conditions of the bond are left unaddressed —is and the ultimately liability part if un- of a he is to be on underlying lawsuit, or is it instead to be con- in the successful good-faith “exigent test? The cir- ditioned on some sort of admittedly equally are referred to the Court cumstances” nonresidency enough vague; appears in States, to be some required attempt others, in an effort to to conceal assets is jurisdiction others. We should await concrete flee the still involving exigent present questions bonds and cases which attempt if the we to decide when and circumstances before requires Amendment Clause of the Fourteenth Due Process prerequisites for a lawful attachment. them as in the Scalia, concurring part concurring
Justice judgment. recognized attachment here was not a the manner of
Since procedure Mut. Ins. Co. v. law, at common cf. Pacific Life (1991) Haslip, concurring J., 499 U. S. (Scalia, judgment), agree validity I its under the Due Process by applying Clause should be determined test we set Eldridge, (1976); forth in Mathews v. and I U. S.
agree join I I III that it fails that test. Parts of the opinion, judgment Court’s and concur of the Court.