U.S. Supreme Court Connecticut v. Doehr, 501 U.S. 1 (1991) Connecticut v. Doehr No. 90-143 Argued Jan. 7, 1991 Decided June 6, 1991 501 U.S.
1 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus A Connecticut statute authorizes a judge to allow the
prejudgment attachment of real estate without prior notice or
hearing upon the plaintiff's verification that there is probable
cause to sustain the validity of his or her claim. Petitioner
DiGiovanni applied to the State Superior Court for such an
attachment on respondent Doehr's home in conjunction with a civil
action for assault and battery that he was seeking to institute
against Doehr in the same court. The application was supported by
an affidavit in which DiGiovanni, in five one-sentence paragraphs,
stated that the facts set forth in his previously submitted
complaint were true; declared that the assault by Doehr resulted in
particular injuries requiring expenditures for medical care; and
stated his "opinion" that the foregoing facts were sufficient to
establish probable cause. On the strength of these submissions, the
judge found probable cause and ordered the attachment. Only after
the sheriff attached the property did Doehr receive notice of the
attachment, which informed him of his right to a post-attachment
hearing. Rather than pursue this option, he filed a suit in the
Federal District Court, claiming that the statute violated the Due
Process Clause of the Fourteenth Amendment. That court upheld the
statute, but the Court of Appeals reversed, concluding that the
statute violated due process because, inter alia, it
permitted ex parte attachment absent a showing of
extraordinary circumstances, see, e.g., Mitchell v. W.T. Grant
Co., 416 U. S. 600 , and
the nature of the issues at stake in this case increased the risk
that attachment was wrongfully Page 501 U. S. 2 granted, since the fact-specific event of a fistfight and the
question of assault are complicated matters that do not easily lend
themselves to documentary proof, see id. at 416 U. S.
609 -610. Held: The judgment is affirmed.

															898 F.2d 852 (CA 2 1990), affirmed.

															JUSTICE WHITE delivered the opinion of the Court with respect to
Parts I, II, and III, concluding that:

															1. Determining what process must be afforded by a state statute
enabling an individual to enlist the State's aid to deprive another
of his or her property by means of prejudgment attachment or
similar procedure requires (1) consideration of the private
interest that will be affected by the prejudgment measure; (2) an
examination of the risk of erroneous deprivation through the
procedures under attack and the probable value of additional or
alternative safeguards; and (3) principal attention to the interest
of the party seeking the prejudgment remedy, with due regard for
any ancillary interest the government may have in providing the
procedure or forgoing the added burden of providing greater
protections. Cf. Mathews v. Eldridge, 424 U.
S. 319 , 424 U. S. 335 .
Pp. 501 U. S.
9 -11.

															2. Application of the Mathews factors demonstrates that
the Connecticut statute, as applied to this case, violates due
process by authorizing prejudgment attachment without prior notice
and a hearing. Pp. 501 U. S.
11 -18.

															(a) The interests affected are significant for a property owner
like Doehr, since attachment ordinarily clouds title; impairs the
ability to sell or otherwise alienate the property; taints any
credit rating; reduces the chance of obtaining a home equity loan
or additional mortgage; and can even place an existing mortgage in
technical default where there is an insecurity clause. That these
effects do not amount to a complete, physical, or permanent
deprivation of real property is irrelevant, since even the
temporary or partial impairments to property rights that such
encumbrances entail are sufficient to merit due process protection. See, e.g., Peralta v. Heights Medical Center, Inc., 485 U. S. 80 , 485 U. S. 85 . P. 501 U. S.
11 -12.

															(b) Without pre-attachment notice and a hearing, the risk of
erroneous deprivation that the State permits here is too great to
satisfy due process under any of the interpretations of the
statutory "probable cause" requirement offered by the parties. If
the statute merely demands inquiry into the sufficiency of the
complaint, or, still less, the plaintiff's good faith belief that
the complaint is sufficient, the judge could authorize deprivation
of the defendant's property when the claim would fail to convince a
jury, when it rested on factual allegations that were sufficient to
state a cause of action but which the defendant would dispute, or
in the case of a good faith standard, even when the complaint
failed to state a claim upon which relief could be granted. Even if
the Page 501 U. S. 3 provision requires a finding of probable cause to believe that
judgment will be rendered in the plaintiff's favor, the reviewing
judge in a case like this could make no realistic assessment based
on the plaintiff's one-sided, self-serving, and conclusory
affidavit and complaint, particularly since the issue does not
concern ordinarily uncomplicated matters like the existence of a
debt or delinquent payments that lend themselves to documentary
proof. See Mitchell, supra, 416 U.S. at 416 U. S. 609 .
Moreover, the safeguards that the State does afford -- an
"expeditious" post-attachment notice and an adversary hearing,
judicial review of an adverse decision, and a double damages action
if the original suit is commenced without probable cause -- do not
adequately reduce the risk of erroneous deprivation under Mitchell, since none of the additional factors that
diminished the need for a predeprivation hearing in that case --
that the plaintiff had a vendor's lien to protect, that the
likelihood of recovery involved uncomplicated, documentable
matters, and that the plaintiff was required to post a bond -- is
present here. Although a later hearing might negate the presence of
probable cause, this would not cure the temporary deprivation that
an earlier hearing might have prevented. Pp. 501 U. S.
12 -15.

															(c) The interests in favor of an ex parte attachment,
particularly DiGiovanni's interests, are too minimal to justify the
burdening of Doehr's ownership rights without a hearing to
determine the likelihood of recovery. Although DiGiovanni had no
existing interest in Doehr's real estate when he sought the
attachment, and his only interest was to ensure the availability of
assets to satisfy his judgment if he prevailed on the merits of his
action, there were no allegations that Doehr was about to transfer
or encumber his real estate or take any other action during the
pendency of the suit that would render his property unavailable to
satisfy a judgment. Absent such allegations, there was no exigent
circumstance permitting the postponement of notice or hearing until
after the attachment was effected. Moreover, the State's
substantive interest in protecting DiGiovanni's de minimis rights cannot be any more weighty than those rights themselves, and
the State cannot seriously plead additional financial or
administrative burdens involving predeprivation hearings when it
already claims to provide an immediate post-deprivation hearing. P. 501 U. S. 16 .

															3. Historical and contemporary practice support the foregoing
analysis. Attachment measures in both England and this country have
traditionally had several limitations that reduced the risk of
erroneous deprivation, including requirements that the defendant
had taken or threatened some action that would place satisfaction
of the plaintiff's potential award in jeopardy, that the plaintiff
be a creditor, as opposed to the victim of a tort, and that the
plaintiff post a bond. Moreover, a survey of current state
attachment provisions reveals that nearly every Page 501 U. S. 4 State requires either a pre-attachment hearing, a showing of
some exigent circumstance, or both, before permitting an attachment
to take place. Although the States, for the most part, no longer
confine attachments to creditor claims, this development only
increases the importance of the other limitations. Pp. 501 U. S.
16 -18.

															WHITE, J., delivered the opinion for a unanimous Court with
respect to Parts I and III, the opinion of the Court with respect
to Part II, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN,
STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and an opinion
with respect to Parts IV and V, in which MARSHALL, STEVENS, and
O'CONNOR, JJ., joined. REHNQUIST, C.J., filed a concurring opinion,
in which BLACKMUN, J., joined, post, p. 501 U. S. 26 .
SCALIA, J., filed an opinion concurring in part and concurring in
the judgment, post, p. 501 U. S. 30 .

															JUSTICE WHITE delivered an opinion, Parts I, II, and III of
which are the opinion of the Court. * This case requires us to determine whether a state statute that
authorizes prejudgment attachment of real estate without prior
notice or hearing, without a showing of extraordinary
circumstances, and without a requirement that the person seeking
the attachment post a bond, satisfies the Due Process Clause of the
Fourteenth Amendment. We hold that, as applied to this case, it
does not. Page 501 U. S. 5 I On March 15, 1988, Petitioner John F. DiGiovanni submitted an
application to the Connecticut Superior Court for an attachment in
the amount of $75,000 on respondent Brian K. Doehr's home in
Meridan, Connecticut. DiGiovanni took this step in conjunction with
a civil action for assault and battery that he was seeking to
institute against Doehr in the same court. The suit did not involve
Doehr's real estate, nor did DiGiovanni have any preexisting
interest either in Doehr's home or any of his other property.

															Connecticut law authorizes prejudgment attachment of real estate
without affording prior notice or the opportunity for a prior
hearing to the individual whose property is subject to the
attachment. The State's prejudgment remedy statute provides, in
relevant part:

															"The court or a judge of the court may allow the prejudgment
remedy to be issued by an attorney without hearing as provided in
sections 52-278c and 52-278d upon verification by oath of the
plaintiff or of some competent affiant, that there is probable
cause to sustain the validity of the plaintiff's claims and (1)
that the prejudgment remedy requested is for an attachment of real
property. . . ."

															Conn.Gen.Stat. § 52-278e (1991). [ Footnote 1 ] Page 501 U. S. 6 The statute does not require the plaintiff to post a bond to
insure the payment of damages that the defendant may suffer should
the attachment prove wrongfully issued or the claim prove
unsuccessful.

															As required, DiGiovanni submitted an affidavit in support of his
application. In five one-sentence paragraphs, DiGiovanni stated
that the facts set forth in his previously submitted complaint were
true; that "I was willfully, wantonly and maliciously assaulted by
the defendant, Brian K. Doehr"; that "[s]aid assault and battery
broke my left wrist and further caused an ecchymosis to my right
eye, as well as other injuries"; and that "I have further expended
sums of money Page 501 U. S. 7 for medical care and treatment." The affidavit concluded with
the statement, "In my opinion, the foregoing facts are sufficient
to show that there is probable cause that judgment will be rendered
for the plaintiff."

															On the strength of these submissions the Superior Court judge,
by an order dated March 17, found "probable cause to sustain the
validity of the plaintiff's claim" and ordered the attachment on
Doehr's home "to the value of $75,000." The sheriff attached the
property four days later, on March 21. Only after this did Doehr
receive notice of the attachment. He also had yet to be served with
the complaint, which is ordinarily necessary for an action to
commence in Connecticut. Young v. Margiotta, 136 Conn.429,
433, 71 A.2d 924, 926 (1950). As the statute further required, the
attachment notice informed Doehr that he had the right to a
hearing: (1) to claim that no probable cause existed to sustain the
claim; (2) to request that the attachment be vacated, modified, or
that a bond be substituted; or (3) to claim that some portion of
the property was exempt from execution. Conn.Gen.Stat. § 52-278e(b)
(1991).

															Rather than pursue these options, Doehr filed suit against
DiGiovanni in Federal District Court, claiming that § 52-278e(a)(1)
was unconstitutional under the Due Process Clause of the Fourteenth
Amendment. [ Footnote 2 ] The
District Court upheld the statute and granted summary judgment in
favor of DiGiovanni. Pinsky v. Duncan, 716 F. Supp.
58 (Conn.1989). On appeal, a divided panel of the United States
Court of Appeals for the Second Circuit reversed. Pinsky v.
Duncan, 898 F.2d 852 (1990). [ Footnote 3 ] Judge Pratt, who wrote the opinion Page 501 U. S. 8 for the court, concluded that the Connecticut statute violated
due process in permitting ex parte attachment absent a
showing of extraordinary circumstances.

															"The rule to be derived from Sniadach v. Family Finance
Corp. of Bay View, 395 U. S. 337 (1969) and its
progeny, therefore, is not that post-attachment hearings are
generally acceptable provided that the plaintiff files a factual
affidavit and that a judicial officer supervises the process, but
that a prior hearing may be postponed where exceptional
circumstances justify such a delay, and where sufficient additional
safeguards are present." Id. at 855. This conclusion was deemed to be consistent
with our decision in Mitchell v. W.T. Grant Co., 416 U. S. 600 (1974), because the absence of a pre-attachment hearing was
approved in that case based on the presence of extraordinary
circumstances.

															A further reason to invalidate the statute, the court ruled, was
the highly factual nature of the issues in this case. In Mitchell, there were "uncomplicated matters that len[t]
themselves to documentary proof" and "[t]he nature of the issues at
stake minimize[d] the risk that the writ [would] be wrongfully
issued by a judge." Id. at 416 U. S.
609 -610. Similarly, in Mathews v. Eldridge, 424 U. S. 319 , 424 U. S.
343 -344 (1976), where an evidentiary hearing was not
required prior to the termination of disability benefits, the
determination of disability was "sharply focused and easily
documented." Judge Pratt observed that, in contrast, the present
case involved the fact-specific event of a fistfight and the issue
of assault. He doubted that the judge could reliably determine
probable cause when presented with only the plaintiff's version of
the altercation.

															"Because the risk of a wrongful attachment is considerable under
these circumstances, we conclude that dispensing with notice and
opportunity for a hearing until after the attachment, without a
showing of extraordinary circumstances, violates the requirements
of due process."

															898 F.2d at 856. Judge Pratt went on to conclude that, in his
view, the statute was also constitutionally infirm for its
failure Page 501 U. S. 9 to require the plaintiff to post a bond for the protection of
the defendant in the event the attachment was ultimately found to
have been improvident.

															Judge Mahoney was also of the opinion that the statutory
provision for attaching real property in civil actions, without a
prior hearing and in the absence of extraordinary circumstances,
was unconstitutional. He disagreed with Judge Pratt's opinion that
a bond was constitutionally required. Judge Newman dissented from
the holding that a hearing prior to attachment was constitutionally
required and, like Judge Mahoney, disagreed with Judge Pratt on the
necessity for a bond.

															The dissent's conclusion accorded with the views of Connecticut
Supreme Court, which had previously upheld § 52-278e(b) in Fermont Division, Dynamics Corp. of America v. Smith, 178
Conn. 393, 423 A.2d 80 (1979). We granted certiorari to resolve the
conflict of authority. 498 U.S. 809 (1990). II With this case, we return to the question of what process must
be afforded by a state statute enabling an individual to enlist the
aid of the State to deprive another of his or her property by means
of the prejudgment attachment or similar procedure. Our cases
reflect the numerous variations this type of remedy can entail. In Sniadach v. Family Finance Corp. of Bay View, 395 U.
S. 337 (1969), the Court struck down a Wisconsin statute
that permitted a creditor to effect prejudgment garnishment of
wages without notice and prior hearing to the wage earner. In Fuentes v. Shevin, 407 U. S. 67 (1972), the Court likewise found a Due Process violation in state
replevin provisions that permitted vendors to have goods seized
through an ex parte application to a court clerk and the
posting of a bond. Conversely, the Court upheld a Louisiana ex
parte procedure allowing a lienholder to have disputed goods
sequestered in Mitchell v. W. T. Grant Co., 416 U.
S. 600 (1974). Mitchell, however, carefully
noted that Fuentes was Page 501 U. S. 10 decided against "a factual and legal background sufficiently
different . . . that it does not require the invalidation of the
Louisiana sequestration statute." Id. 416 U.S. at 416 U. S. 615 .
Those differences included Louisiana's provision of an immediate
post-deprivation hearing along with the option of damages; the
requirement that a judge, rather than a clerk, determine that there
is a clear showing of entitlement to the writ; the necessity for a
detailed affidavit; and an emphasis on the lienholder's interest in
preventing waste or alienation of the encumbered property . Id. at 416 U. S.
615 -618. In North Georgia Finishing, Inc. v. DiChem,
Inc., 419 U. S. 601 (1975), the Court again invalidated an ex parte garnishment statute that not only failed to provide for notice and
prior hearing, but that also failed to require a bond, a detailed
affidavit setting out the claim, the determination of a neutral
magistrate, or a prompt post-deprivation hearing. Id. at 419 U. S.
606 -608.

															These cases

															"underscore the truism that '[d]ue process, unlike some legal
rules, is not a technical conception with a fixed content unrelated
to time, place and circumstances.'" Mathews v. Eldridge, supra, 424 U.S. at 424 U. S. 334 (quoting Cafeteria Workers v. McElroy, 367 U.
S. 886 , 367 U. S. 895 (1961)). In Mathews, we drew upon our prejudgment remedy
decisions to determine what process is due when the government
itself seeks to effect a deprivation on its own initiative. Mathews, 424 U.S. at 424 U. S. 334 .
That analysis resulted in the now familiar threefold inquiry
requiring consideration of "the private interest that will be
affected by the official action"; "the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute safeguards";
and lastly "the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail." Id. at 335.

															Here the inquiry is similar, but the focus is different.
Prejudgment remedy statutes ordinarily apply to disputes between
private parties, rather than between an individual and Page 501 U. S. 11 the government. Such enactments are designed to enable one of
the parties to "make use of state procedures with the overt,
significant assistance of state officials," and they undoubtedly
involve state action "substantial enough to implicate the Due
Process Clause." Tulsa Professional Collection Services, Inc.
v. Pope, 485 U. S. 478 , 485 U. S. 486 (1988). Nonetheless, any burden that increasing procedural
safeguards entails primarily affects not the government, but the
party seeking control of the other's property. See Fuentes v.
Shevin, supra, 407 U.S. at 407 U. S. 99 -101
(WHITE, J., dissenting). For this type of case, therefore, the
relevant inquiry requires, as in Mathews, first,
consideration of the private interest that will be affected by the
prejudgment measure; second, an examination of the risk of
erroneous deprivation through the procedures under attack and the
probable value of additional or alternative safeguards; and third,
in contrast to Mathews, principal attention to the
interest of the party seeking the prejudgment remedy, with,
nonetheless, due regard for any ancillary interest the government
may have in providing the procedure or forgoing the added burden of
providing greater protections.

															We now consider the Mathews factors in determining the adequacy
of the procedures before us, first with regard to the safeguards of
notice and a prior hearing, and then in relation to the protection
of a bond. III We agree with the Court of Appeals that the property interests
that attachment affects are significant. For a property owner like
Doehr, attachment ordinarily clouds title; impairs the ability to
sell or otherwise alienate the property; taints any credit rating;
reduces the chance of obtaining a home equity loan or additional
mortgage; and can even place an existing mortgage in technical
default where there is an insecurity clause. Nor does Connecticut
deny that any of these consequences occurs. Page 501 U. S. 12 Instead, the State correctly points out that these effects do
not amount to a complete, physical, or permanent deprivation of
real property; their impact is less than the perhaps temporary
total deprivation of household goods or wages. See Sniadach,
supra, 395 U.S. at 395 U. S. 340 ; Mitchell, supra, 416 U.S. at 416 U. S. 613 .
But the Court has never held that only such extreme deprivations
trigger due process concern. See Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 74 (1917). To the contrary, our cases show that even the temporary or
partial impairments to property rights that attachments, liens, and
similar encumbrances entail are sufficient to merit due process
protection. Without doubt, state procedures for creating and
enforcing attachments, as with liens, "are subject to the
strictures of due process." Peralta v. Heights Medical Center,
Inc., 485 U. S. 80 , 485 U. S. 85 (1988) (citing Mitchell, supra, 416 U.S. at 416 U. S. 604 ; Hodge v. Muscatine County, 196 U.
S. 276 , 196 U. S. 281 (1905)). [ Footnote 4 ]

															We also agree with the Court of Appeals that the risk of
erroneous deprivation that the State permits here is substantial.
By definition, attachment statutes premise a deprivation of
property on one ultimate factual contingency -- the award of
damages to the plaintiff which the defendant may not be able to
satisfy. See Ownbey v. Morgan, 256 U. S.
94 , 256 U. S.
104 -105 (1921); R. Thompson & J. Sebert, Remedies:
Damages, Equity and Restitution § 5.01 (1983). For attachments Page 501 U. S. 13 before judgment, Connecticut mandates that this determination be
made by means of a procedural inquiry that asks whether "there is
probable cause to sustain the validity of the plaintiff's claim."
Conn.Gen.Stat. § 52-278e(a). The statute elsewhere defines the
validity of the claim in terms of the likelihood "that judgment
will be rendered in the matter in favor of the plaintiff."
Conn.Gen.Stat. § 52-278c(a)(2) (1991); Ledgebrook Condominium
Assn. v. Lusk Corp., 172 Conn.577, 584, 376 A.2d 60, 63-64
(1977). What probable cause means in this context, however, remains
obscure. The State initially took the position, as did the dissent
below, that the statute requires a plaintiff to show the objective
likelihood of the suit's success. Brief for Petitioner 12; Pinsky, 898 F.2d at 861-862 (Newman, J., dissenting).
DiGiovanni, citing ambiguous state cases, reads the provision as
requiring no more than that a plaintiff demonstrate a subjective
good faith belief that the suit will succeed. Brief for Respondent
226. Ledgebrook Condominium Assn., supra, 172 Conn., at
584, 376 A.2d at 63-64; Anderson v. Nedovich, 19 Conn.
App. 85, 88, 561 A.2d 948, 949 (1989). At oral argument, the State
shifted its position to argue that the statute requires something
akin to the plaintiff stating a claim with sufficient facts to
survive a motion to dismiss.

															We need not resolve this confusion, since the statute presents
too great a risk of erroneous deprivation under any of these
interpretations. If the statute demands inquiry into the
sufficiency of the complaint, or, still less, the plaintiff's good
faith belief that the complaint is sufficient, requirement of a
complaint and a factual affidavit would permit a court to make
these minimal determinations. But neither inquiry adequately
reduces the risk of erroneous deprivation. Permitting a court to
authorize attachment merely because the plaintiff believes the
defendant is liable, or because the plaintiff can make out a
facially valid complaint, would permit the deprivation of the
defendant's property when the claim would fail to convince a jury,
when it rested on factual allegations Page 501 U. S. 14 that were sufficient to state a cause of action but which the
defendant would dispute, or, in the case of a mere good faith
standard, even when the complaint failed to state a claim upon
which relief could be granted. The potential for unwarranted
attachment in these situations is self-evident, and too great to
satisfy the requirements of due process absent any countervailing
consideration.

															Even if the provision requires the plaintiff to demonstrate, and
the judge to find, probable cause to believe that judgment will be
rendered in favor of the plaintiff, the risk of error was
substantial in this case. As the record shows, and as the State
concedes, only a skeletal affidavit need be and was filed. The
State urges that the reviewing judge normally reviews the complaint
as well, but concedes that the complaint may also be conclusory. It
is self-evident that the judge could make no realistic assessment
concerning the likelihood of an action's success based upon these
one-sided, self-serving, and conclusory submissions. And as the
Court of Appeals said, in a case like this, involving an alleged
assault, even a detailed affidavit would give only the plaintiff's
version of the confrontation. Unlike determining the existence of a
debt or delinquent payments, the issue does not concern "ordinarily
uncomplicated matters that lend themselves to documentary proof." Mitchell, 416 U.S. at 416 U. S. 609 .
The likelihood of error that results illustrates that "fairness can
rarely be obtained by secret, one-sided determination of facts
decisive of rights. . . . [And n]o better instrument has been
devised for arriving at truth than to give a person in jeopardy of
serious loss notice of the case against him and an opportunity to
meet it." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S.
170 -172 (1951) (Frankfurter, J., concurring).

															What safeguards the State does afford do not adequately reduce
this risk. Connecticut points out that the statute also provides an
"expeditiou[s]" post-attachment adversary hearing, Page 501 U. S. 15 § 52-278e(c); [ Footnote 5 ]
notice for such a hearing, § 52-278e(b); judicial review of an
adverse decision, § 52-2781 (a); and a double damages action if the
original suit is commenced without probable cause, § 52-568(a)(1).
Similar considerations were present in Mitchell, where we
upheld Louisiana's sequestration statute despite the lack of
predeprivation notice and hearing. But in Mitchell, the
plaintiff had a vendor's lien to protect, the risk of error was
minimal because the likelihood of recovery involved uncomplicated
matters that lent themselves to documentary proof, Mitchell,
supra, 416 U.S. at 416 U. S.
609 -610, and plaintiff was required to put up a bond.
None of these factors diminishing the need for a predeprivation
hearing is present in this case. It is true that a later hearing
might negate the presence of probable cause, but this would not
cure the temporary deprivation that an earlier hearing might have
prevented.

															"The Fourteenth Amendment draws no bright lines around
three-day, 10-day or 50-day deprivations of property. Any
significant taking of property by the State is within the purview
of the Due Process Clause." Fuentes, 407 U.S. at 407 U. S.
86 . Page 501 U. S. 16 Finally, we conclude that the interests in favor of an ex
parte attachment, particularly the interests of the plaintiff,
are too minimal to supply such a consideration here. Plaintiff had
no existing interest in Doehr's real estate when he sought the
attachment. His only interest in attaching the property was to
ensure the availability of assets to satisfy his judgment if he
prevailed on the merits of his action. Yet there was no allegation
that Doehr was about to transfer or encumber his real estate or
take any other action during the pendency of the action that would
render his real estate unavailable to satisfy a judgment. Our cases
have recognized such a properly supported claim would be an exigent
circumstance permitting postponing any notice or hearing until
after the attachment is effected. See Mitchell, supra, 416
U.S. at 416 U. S. 609 ; Fuentes, supra, 407 U.S. at 407 U. S. 90 -92; Sniadach, 395 U.S. at 395 U. S. 339 .
Absent such allegations, however, the plaintiff's interest in
attaching the property does not justify the burdening of Doehr's
ownership rights without a hearing to determine the likelihood of
recovery.

															No interest the government may have affects the analysis. The
State's substantive interest in protecting any rights of the
plaintiff cannot be any more weighty than those rights themselves.
Here the plaintiff's interest is de minimis. Moreover, the
State cannot seriously plead additional financial or administrative
burdens involving predeprivation hearings when it already claims to
provide an immediate post-deprivation hearing. Conn.Gen.Stat. §§
52-278e(b) and (c) (1991); Fermont, 178 Conn., at 397-398,
423 A.2d at 83.

															Historical and contemporary practice support our analysis.
Prejudgment attachment is a remedy unknown at common law.
Instead,

															"it traces its origin to the Custom of London, under which a
creditor might attach money or goods of the defendant either in the
plaintiff's own hands or in the custody of a third person, by
proceedings in the mayor's court or in the sheriff's court." Ownbey, 256 U.S. at 256 U. S. 104 .
Generally speaking, attachment measures in both England and
this Page 501 U. S. 17 country had several limitations that reduced the risk of
erroneous deprivation which Connecticut permits. Although
attachments ordinarily did not require prior notice or a hearing,
they were usually authorized only where the defendant had taken or
threatened to take some action that would place the satisfaction of
the plaintiff's potential award in jeopardy. See C. Drake,
Law of Suits by Attachments, §§ 40-82 (1866) (hereinafter Drake); 1
R. Shinn, Attachment and Garnishment § 86 (1896) (hereinafter
Shinn). Attachments, moreover, were generally confined to claims by
creditors. Drake §§ 9-10; Shinn § 12. As we and the Court of
Appeals have noted, disputes between debtors and creditors more
readily lend themselves to accurate ex parte assessments
of the merits. Tort actions, like the assault and battery claim at
issue here, do not. See Mitchell, supra, 416 U.S. at 416 U. S.
609 -610. Finally, as we will discuss below, attachment
statutes historically required that the plaintiff post a bond.
Drake §§ 114-183; Shinn § 153.

															Connecticut's statute appears even more suspect in light of
current practice. A survey of state attachment provisions reveals
that nearly every State requires either a pre-attachment hearing, a
showing of some exigent circumstance, or both, before permitting an
attachment to take place. ( See 501 U.S.
1 app|>appendix.) Twenty-seven States, as well as the
District of Columbia, permit attachments only when some
extraordinary circumstance is present. In such cases,
pre-attachment hearings are not required, but post-attachment
hearings are provided. Ten States permit attachment without the
presence of such factors, but require pre-writ hearings unless one
of those factors is shown. Six States limit attachments to
extraordinary circumstance cases, but the writ will not issue prior
to a hearing unless there is a showing of some even more compelling
condition. [ Footnote 6 ] Three
States always require a Page 501 U. S. 18 pre-attachment hearing. Only Washington, Connecticut, and Rhode
Island authorize attachments without a prior hearing in situations
that do not involve any purportedly heightened threat to the
plaintiff's interests. Even those States permit ex parte deprivations only in certain types of cases: Rhode Island does so
only when the claim is equitable; Connecticut and Washington do so
only when real estate is to be attached, and even Washington
requires a bond. Conversely, the States, for the most part, no
longer confine attachments to creditor claims. This development,
however, only increases the importance of the other
limitations.

															We do not mean to imply that any given exigency requirement
protects an attachment from constitutional attack. Nor do we
suggest that the statutory measures we have surveyed are
necessarily free of due process problems or other constitutional
infirmities in general. We do believe, however, that the procedures
of almost all the States confirm our view that the Connecticut
provision before us, by failing to provide a pre-attachment hearing
without at least requiring a showing of some exigent circumstance,
clearly falls short of the demands of due process. IV A Although a majority of the Court does not reach the issue,
JUSTICES MARSHALL, STEVENS, O'CONNOR, and I deem it appropriate to
consider whether due process also requires the plaintiff to post a
bond or other security in addition to requiring a hearing or
showing of some exigency. [ Footnote
7 ] Page 501 U. S. 19 As noted, the impairments to property rights that attachments
affect merit due process protection. Several consequences can be
severe, such as the default of a homeowner's mortgage. In the
present context, it need only be added that we have repeatedly
recognized the utility of a bond in protecting property rights
affected by the mistaken award of prejudgment remedies. Di-Chem, 419 U.S. at 419 U. S. 610 , 419 U. S. 611 (Powell, J., concurring in judgment); id. at 419 U. S. 619 (BLACKMUN, J., dissenting); Mitchell, 416 U.S. at 416 U. S. 606 ,
n. 8.

															Without a bond, at the time of attachment, the danger that these
property rights may be wrongfully deprived remains unacceptably
high, even with such safeguards as a hearing or exigency
requirement. The need for a bond is especially apparent where
extraordinary circumstances justify an attachment with no more than
the plaintiff's ex parte assertion of a claim. We have
already discussed how due process tolerates, and the States
generally permit, the otherwise impermissible chance of erroneously
depriving the defendant in such situations in light of the
heightened interest of the plaintiff. Until a post-attachment
hearing, however, a defendant has no protection against damages
sustained where no extraordinary circumstance in fact existed or
the plaintiff's likelihood of recovery was nil. Such protection is
what a bond can supply. Both the Court and its individual members
have repeatedly found the requirement of a bond to play an
essential role in reducing what would have been too great a degree
of risk in precisely this type of circumstance. Mitchell, Page 501 U. S. 20 supra, at 416 U. S. 610 , 416 U. S. 619 ; Di-Chem, supra, 419 U.S. at 419 U. S. 613 (Powell, J., concurring in judgment); id. at 419 U. S. 619 (BLACKMUN, J., dissenting); Fuentes, 407 U.S. at 407 U. S. 101 (WHITE, J., dissenting).

															But the need for a bond does not end here. A defendant's
property rights remain at undue risk even when there has been an
adversarial hearing to determine the plaintiff's likelihood of
recovery. At best, a court's initial assessment of each party's
case cannot produce more than an educated prediction as to who will
win. This is especially true when, as here, the nature of the claim
makes any accurate prediction elusive. See Mitchell,
supra, 416 U.S. at 416 U. S.
609 -610. In consequence, even a full hearing under a
proper probable cause standard would not prevent many defendants
from having title to their homes impaired during the pendency of
suits that never result in the contingency that ultimately
justifies such impairment, namely, an award to the plaintiff.
Attachment measures currently on the books reflect this concern.
All but a handful of States require a plaintiff's bond despite also
affording a hearing either before, or (for the vast majority, only
under extraordinary circumstances) soon after, an attachment takes
place. ( See 501 U.S.
1 app|>appendix.) Bonds have been a similarly common feature
of other prejudgment remedy procedures that we have considered,
whether or not these procedures also included a hearing. See
Ownbey, 256 U.S. at 256 U. S.
101 -102 n. 1; Fuentes, supra, 407 U.S. at 407 U. S. 73 , n.
6, 407 U. S. 75 -76,
n. 7, 407 U. S. 81 -82; Mitchell, supra, 416 U.S. at 416 U. S. 606 ,
and n. 6; Di-Chem, supra, 419 U.S. at 419 U. S.
602 -603, n. 1, 419 U. S.
608 .

															The State stresses its double damages remedy for suits that are
commenced without probable cause. Conn.Gen.Stat. § 52-568(a)(1).
[ Footnote 8 ] This remedy,
however, fails to make Page 501 U. S. 21 up for the lack of a bond. As an initial matter, the meaning of
"probable cause" in this provision is no more clear here than it
was in the attachment provision itself. Should the term mean the
plaintiff's good faith or the facial adequacy of the complaint, the
remedy is clearly insufficient. A defendant who was deprived where
there was little or no likelihood that the plaintiff would obtain a
judgment could nonetheless recover only by proving some type of
fraud or malice or by showing that the plaintiff had failed to
state a claim. Problems persist even if the plaintiff's ultimate
failure permits recovery. At best, a defendant must await a
decision on the merits of the plaintiff's complaint, even assuming
that a § 52-568(a)(1) action may be brought as a counterclaim. Hydro Air of Connecticut, Inc. v. Versa Technologies,
Inc., 99 F.R.D. 111, 113 (Conn.1983). Settlement, under
Connecticut law, precludes seeking the damages remedy, a fact that
encourages the use of attachments as a tactical device to pressure
an opponent to capitulate. Blake v. Levy, 191 Conn.257,
464 A.2d 52 (1983). An attorney's advice that there is probable
cause to commence an action constitutes a complete defense, even if
the advice was unsound or erroneous. Vandersluis v. Weil, 176 Conn.353, 361, 407 A.2d 982, 987 (1978). Finally, there is no
guarantee that the original plaintiff will have adequate assets to
satisfy an award that the defendant may win.

															Nor is there any appreciable interest against a bond
requirement. Section 52278e(a)(1) does not require a plaintiff to
show exigent circumstances nor any preexisting interest in the
property facing attachment. A party must show more than the mere
existence of a claim before subjecting an opponent to prejudgment
proceedings that carry a significant risk of erroneous deprivation. See Mitchell, 416 U.S. at 416 U. S.
604 -609; Fuentes, supra, 407 U.S. at 407 U. S. 90 -92; Sniadach, 395 U.S. at 395 U. S.
339 . Page 501 U. S. 22 Our foregoing discussion compels the four of us to consider
whether a bond excuses the need for a hearing or other safeguards
altogether. If a bond is needed to augment the protections afforded
by pre-attachment and post-attachment hearings, it arguably follows
that a bond renders these safeguards unnecessary. That conclusion
is unconvincing, however, for it ignores certain harms that bonds
could not undo but that hearings would prevent. The law concerning
attachments has rarely, if ever, required defendants to suffer an
encumbered title until the case is concluded without any prior
opportunity to show that the attachment was unwarranted. Our cases
have repeatedly emphasized the importance of providing a prompt
post-deprivation hearing at the very least. Mitchell,
supra, 416 U.S. at 416 U. S. 606 ; Di-Chem, 419 U.S. at 419 U. S.
606 -607. Every State but one, moreover, expressly
requires a pre-attachment or post-attachment hearing to determine
the propriety of an attachment.

															The necessity for at least a prompt post-attachment hearing is
self-evident, because the right to be compensated at the end of the
case, if the plaintiff loses, for all provable injuries caused by
the attachment is inadequate to redress the harm inflicted, harm
that could have been avoided had an early hearing been held. An
individual with an immediate need or opportunity to sell a property
can neither do so nor otherwise satisfy that need or recreate the
opportunity. The same applies to a parent in need of a home equity
loan for a child's education, an entrepreneur seeking to start a
business on the strength of an otherwise strong credit rating, or
simply a homeowner who might face the disruption of having a
mortgage placed in technical default. The extent of these harms,
moreover, grows with the length of the suit. Here, oral argument
indicated that civil suits in Connecticut commonly take up to four
to seven years for completion. (Tr. of Oral Arg. 44.) Many state
attachment statutes require Page 501 U. S. 23 that the amount of a bond be anywhere from the equivalent to
twice the amount the plaintiff seeks. See, e.g., Utah Rule
of Civ.Proc. 64C(b). These amounts bear no relation to the harm the
defendant might suffer, even assuming that money damages can make
up for the foregoing disruptions. It should be clear, however, that
such an assumption is fundamentally flawed. Reliance on a bond does
not sufficiently account for the harms that flow from an erroneous
attachment to excuse a State from reducing that risk by means of a
timely hearing.

															If a bond cannot serve to dispense with a hearing immediately
after attachment, neither is it sufficient basis for not providing
a pre-attachment hearing in the absence of exigent circumstances,
even if in any event a hearing would be provided a few days later.
The reasons are the same: a wrongful attachment can inflict injury
that will not fully be redressed by recovery on the bond after a
prompt post-attachment hearing determines that the attachment was
invalid.

															Once more, history and contemporary practice support our
conclusion. Historically, attachments would not issue without a
showing of extraordinary circumstances, even though a plaintiff
bond was almost invariably required in addition. Drake §§ 4, 114;
Shinn §§ 86, 153. Likewise, all but eight States currently require
the posting of a bond. Out of this 42 State majority, all but one
requires a pre-attachment hearing, a showing of some exigency, or
both, and all but one expressly require a post-attachment hearing
when an attachment has been issue ex parte. ( See 501 U.S.
1 app|>appendix.) This testimony underscores the point that
neither a hearing nor an extraordinary circumstance limitation
eliminates the need for a bond, no more than a bond allows waiver
of these other protections. To reconcile the interests of the
defendant and the plaintiff accurately, due process generally
requires all of the above. Page 501 U. S. 24 V Because Connecticut's prejudgment remedy provision,
Conn.Gen.Stat. § 52-278e(a)(1), violates the requirements of due
process by authorizing prejudgment attachment without prior notice
or a hearing, the judgment of the Court of Appeals is affirmed, and
the case is remanded to that court for further proceedings
consistent with this opinion. It is so ordered. * THE CHIEF JUSTICE, JUSTICE BLACKMUN, JUSTICE KENNEDY, and
JUSTICE SOUTER join Parts I, II, and III of this opinion, and
JUSTICE SCALIA joins Parts I and III.

															[ Footnote 1 ]

															The complete text of § 52-278e reads:

															"Allowance of prejudgment remedy without hearing. Notice to
defendant. Subsequent hearing and order. Attachment of real
property of municipal officers. (a) The court or a judge of the
court may allow the prejudgment remedy to be issued by an attorney
without hearing as provided in sections 52-278c and 52-278d upon
verification by oath of the plaintiff or of some competent affiant,
that there is probable cause to sustain the validity of the
plaintiff's claim and (1) that the prejudgment remedy requested is
for an attachment of real property; or (2) that there is reasonable
likelihood that the defendant (A) neither resides in nor maintains
an office or place of business in this state and is not otherwise
subject to jurisdiction over his person by the court, or (B) has
hidden or will hide himself so that process cannot be served on him
or (C) is about to remove himself or his property from this state
or (D) is about to fraudulently dispose of or has fraudulently
disposed of any of his property with intent to hinder, delay or
defraud his creditors or (E) has fraudulently hidden or withheld
money, property or effects which should be liable to the
satisfaction of his debts or (F) has stated he is insolvent or has
stated he is unable to pay his debts as they mature."

															"(b) If a prejudgment remedy is granted pursuant to this
section, the plaintiff shall include in the process served on the
defendant the following notice prepared by the plaintiff: YOU HAVE
RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING
CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS
PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A
HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE
CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST
THAT THE PREJUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR
THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO
ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM
EXECUTION."

															"(c) The defendant appearing in such action may move to dissolve
or modify the prejudgment remedy granted pursuant to this section
in which event the court shall proceed to hear and determine such
motion expeditiously. If the court determines at such hearing
requested by the defendant that there is probable cause to sustain
the validity of the plaintiff's claim, then the prejudgment remedy
granted shall remain in effect. If the court determines there is no
probable cause, the prejudgment remedy shall be dissolved. An order
shall be issued by the court setting forth the action it has
taken."

															[ Footnote 2 ]

															Three other plaintiffs joined Doehr, challenging § 52-278e(a)(1)
out of separate instances of attachment by different defendants.
These other plaintiffs and defendants did not participate in the
Court of Appeals, and are no longer parties in this case.

															[ Footnote 3 ]

															The Court of Appeals invited Connecticut to intervene pursuant
to 28 U.S.C. § 2403(b) after oral argument. The State elected to
intervene in the appeal, and has fully participated in the
proceedings before this Court.

															[ Footnote 4 ]

															Our summary affirmance in Spielman-Fond, Inc. v. Hanson's
Inc., 417 U.S. 901 (1974), does not control. In Spielman-Fond, the District Court held that the filing of
a mechanic's lien did not amount to the taking of a significant
property interest. 379 F.
Supp. 997 , 999 (Ariz.1973) (three-judge court) (per curiam). A
summary disposition does not enjoy the full precedential value of a
case argued on the merits and disposed of by a written opinion. Edelman v. Jordan, 415 U. S. 651 , 415 U. S. 671 (1974). The facts of Spielman-Fond presented an
alternative basis for affirmance, in any event. Unlike the case
before us, the mechanic's lien statute in Spielman-Fond required the creditor to have a preexisting interest in the
property at issue. 379 F.
Supp. at 997 . As we explain below, a heightened plaintiff
interest in certain circumstances can provide a ground for
upholding procedures that are otherwise suspect. Infra at 501 U. S. 15 .

															[ Footnote 5 ]

															The parties vigorously dispute whether a defendant can, in fact,
receive a prompt hearing. Doehr contends that the State's rules of
practice prevent the filing of any motion -- including a motion for
the mandated post-attachment hearing -- until the return date on
the complaint, which in this case was 30 days after service.
Connecticut Practice Book § 114 (1988). Under state law, at least
12 days must elapse between service on the defendant and the return
date. Conn.Gen.Stat. § 52-46 (1991). The State counters that the
post-attachment hearing is available upon request. See Fermont
Division, Dynamics Corp. of America v. Smith, 178 Conn.393,
397398, 423 A.2d 80, 83 (1979) ("Most important, the statute
affords to the defendant whose property has been attached the
opportunity to obtain an immediate post-seizure hearing at which
the prejudgment remedy will be dissolved unless the moving party
proves probable cause to sustain the validity of his claim"). We
assume, without deciding, that the hearing is prompt. Even on this
assumption, the State's procedures fail to provide adequate
safeguards against the erroneous deprivation of the property
interest at stake.

															[ Footnote 6 ]

															One State, Pennsylvania, has not had an attachment statute or
rule since the decision in Jonnet v. Dollar Savings Bank of New
York City, 530 F.2d 1123 (CA3 1976).

															[ Footnote 7 ]

															Ordinarily we will not address a contention advanced by a
respondent that would enlarge his or her rights under a judgment,
without the respondent filing a cross-petition for certiorari. E.g., Trans World Airlines, Inc. v. Thurston, 469 U.
S. 111 , 469 U. S. 119 ,
n. 14 (1985). Here the Court of Appeals rejected Doehr's argument
that § 52-278e(a)(1) violates due process in failing to mandate a
pre-attachment bond. Nonetheless, this case involves considerations
that in the past have prompted us "to consider the question
highlighted by respondent." Berkemer v. McCarty, 468 U. S. 420 , 468 U. S.
435 -436, n. 23 (1984). First, as our cases have shown,
the notice and hearing question and the bond question are
intertwined and can fairly be considered facets of same general
issue. Thus,

															"[w]ithout undue strain, the position taken by respondent before
this Court . . . might be characterized as an argument in support
of the judgment below"

															insofar as a discussion of notice and a hearing cannot be
divorced from consideration of a bond. Ibid. Second, this
aspect of prejudgment attachment "plainly warrants our attention,
and with regard to which the lower courts are in need of guidance." Ibid. Third, "and perhaps most importantly, both parties
have briefed and argued the question." Ibid. [ Footnote 8 ]

															Section 52-568(a)(1) provides:

															"Any person who commences and prosecutes any civil action or
complaint against another, in his own name, or the name of others,
or asserts a defense to any civil action or complaint commenced and
prosecuted by another (1) without probable cause, shall pay such
other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other
person, shall pay him treble damages."

															| 501 U.S.
1 app| APPENDIX bwm: Prejudgment Attachment Statutes ----------------------------------------------------------------------

															Attachment

															Only in

															Pre-Attach Exigent Circs; Pre-Attach

															Hrg Required No Pre-At- Hrg Even in

															Unless Exigent tach Hrg Most Exigent Bond Post-Attach

															Circs Required Circs Req'd Hrg Req'd

----------------------------------------------------------------------

															Alabama X X X

															Alaska Pre-attachment hrg always require X

															Arizona X X X

															Arkansas X X X

															California X X X

															Colorado X X X

															Connecticut X (or unless attachment of real estat X

															Delaware X X X

															DC X X X

															Florida X X X

															Georgia X X X

															Hawaii Pre-attachment hrg always required. X X

															Idaho X X X

															Illinois X X X

															Indiana X X X

															Iowa X X X

															Kansas X X X

															Kentucky X X

															Louisiana X X X Page 501 U. S. 25 Maine X X

															Maryland X X X

															Massachusetts X X/O[1] X

															Michigan X X

															Minnesota X X X

															Mississippi X X X

															Missouri X X X

															Montana X X X

															Nebraska X X X

															Nevada X X X

															New Hampshire X X

															New Jersey X X/O X

															New Mexico X X X

															New York X X X

															North Carolina X X X

															North Dakota X X X

															Ohio X X X

															Oklahoma X X X

															Oregon Pre-attachment hrg always required. X

															Pennsylvania Rescinded in light of 530 F.2d 1123 (CA3 1976).

															Rhode Island X (but not if equitable claim) X/O

															South Carolina X X X

															South Dakota X X X

															Tennessee X X X[2]

															Texas X X X

															Utah X X X

															Vermont X X Page 501 U. S. 26 Virginia X X X

															Washington X X[3] X

															(except for real estate on a contract claim)

															West Virginia X X X

															Wisconsin X X X

															Wyoming X X X

-----------------------------------------------------------------------

															1. An "x/o" in the "Bond Required" column indicates that a bond
may be required at the discretion of the court.

															2. The court may, under certain circumstances, quash the
attachment at the defendant's request without a hearing.

															3. A bond is required except in situations in which the
plaintiff seeks to attach the real property of a defendant who,
after diligent efforts, cannot be served.

															ewm:

															CHIEF JUSTICE REHNQUIST with whom JUSTICE BLACKMUN joins,
concurring.

															I agree with the Court that the Connecticut attachment statute,
"as applied in this case," ante, p. 501 U.
S. , fails to satisfy the Due Process Clause of the
Fourteenth Amendment. I therefore join Parts I, II and III of its
opinion. Unfortunately, the remainder of the Court's opinion does
not confine itself to the facts of this case, but enters upon a
lengthy disquisition as to what combination of safeguards are
required to satisfy Due Process in hypothetical cases not before
the Court . I therefore do not join 501 U. S. As the Court's opinion points out, the Connecticut statute
allows attachment not merely for a creditor's claim, but for a tort
claim of assault and battery; it affords no opportunity for a
pre-deprivation hearing; it contains no requirement that there be
"exigent circumstances," such as an effort on the part of the
defendant to conceal assets; no bond is required from the
plaintiff; and the property attached is one in which the plaintiff
has no preexisting interest. The Court's opinion Page 501 U. S. 27 is, in my view, ultimately correct when it bases its holding of
unconstitutionality of the Connecticut statute as applied here on
our cases of Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S.
67 (1972); Mitchell v. W.T. Grant Co., 416 U. S. 600 (1974), and North Georgia Finishing v. Di-Chem, Inc., 419 U. S. 601 (1975). But I do not believe that the result follows so inexorably
as the Court's opinion suggests. All of the cited cases dealt with
personalty -- bank deposits or chattels -- and each involved the
physical seizure of the property itself, so that the defendant was
deprived of its use. These cases, which represented something of a
revolution in the jurisprudence of procedural due process, placed
substantial limits on the methods by which creditors could obtain a
lien on the assets of a debtor prior to judgment. But in all of
them, the debtor was deprived of the use and possession of the
property. In the present case, on the other hand, Connecticut's
prejudgment attachment on real property statute, which secures an
incipient lien for the plaintiff, does not deprive the defendant of
the use or possession of the property.

															The Court's opinion therefore breaks new ground, and I would
point out, more emphatically than the Court does, the limits of
today's holding. In Spielman-Fond, Inc. v. Hanson's,
Inc., 379 F.
Supp. 997 , 999 (D.Ariz.1973), the District Court held that the
filing of a mechanics' lien did not cause the deprivation of a
significant property interest of the owner. We summarily affirmed
that decision. 417 U.S. 901 (1974). Other courts have read this
summary affirmance to mean that the mere imposition of a lien on
real property, which does not disturb the owner's use or enjoyment
of the property, is not a deprivation of property calling for
procedural due process safeguards. I agree with the Court, however,
that, upon analysis, the deprivation here is a significant one,
even though the owner remains in undisturbed possession.

															"For a property owner like Doehr, attachment ordinarily clouds
title; impairs the ability to sell or otherwise Page 501 U. S. 28 alienate the property; taints any credit rating; reduces the
chance of obtaining a home equity loan or additional mortgage; and
can even place an existing mortgage in technical default when there
is an insecurity clause." Ante at 501 U. S. 11 .
Given the elaborate system of title records relating to real
property which prevails in all of our states, a lienor need not
obtain possession or use of real property belonging to a debtor in
order to significantly impair its value to him.

															But in Spielman-Fond, Inc., supra, there was, as the
Court points out in fn 4, ante an alternate basis available to this Court for
affirmance of that decision. Arizona recognized a preexisting lien
in favor of unpaid mechanics and materialmen who had contributed
labor or supplies which were incorporated in improvements to real
property. The existence of such a lien upon the very property
ultimately posted or noticed distinguishes those cases from the
present one, where the plaintiff had no preexisting interest in the
real property which he sought to attach. Materialman's and
mechanic's lien statutes award an interest in real property to
workers who have contributed their labor, and to suppliers who have
furnished material, for the improvement of the real property. Since
neither the labor nor the material can be reclaimed once it has
become a part of the realty, this is the only method by which
workmen or small businessmen who have contributed to the
improvement of the property may be given a remedy against a
property owner who has defaulted on his promise to pay for the
labor and the materials. To require any sort of a contested court
hearing or bond before the notice of lien takes effect would
largely defeat the purpose of these statutes.

															Petitioner, in its brief, relies in part on our summary
affirmance in Bartlett v. Williams, 464 U.S. 801 (1983).
That case involved a lis pendens, in which the question
presented to this Court was whether such a procedure could be valid
when the only protection afforded to the owner of land affected by
the lis pendens was a post-sequestration hearing. Page 501 U. S. 29 A notice of lis pendens is a well established
traditional remedy whereby a plaintiff (usually a judgment
creditor) who brings an action to enforce an interest in property
to which the defendant has title gives notice of the pendency of
such action to third parties; the notice causes the interest which
he establishes, if successful, to relate back to the date of the
filing of the lis pendens. The filing of such notice will
have an effect upon the defendant's ability to alienate the
property, or to obtain additional security on the basis of title to
the property, but the effect of the lis pendens is simply
to give notice to the world of the remedy being sought in the
lawsuit itself. The lis pendens itself creates no
additional right in the property on the part of the plaintiff, but
simply allows third parties to know that a lawsuit is pending in
which the plaintiff is seeking to establish such a right. Here,
too, the fact that the plaintiff already claims an interest in the
property which he seeks to enforce by a lawsuit distinguishes this
class of cases from the Connecticut attachment employed in the
present case.

															Today's holding is a significant development in the law; the
only cases dealing with real property cited in the Court's opinion, Peralta v. Heights Medical Center, Inc., 485 U. S.
80 , 485 U. S. 85 (1988), and Hodge v. Muscatine County, 196 U.
S. 276 , 196 U. S. 281 (1905), arose out of lien foreclosure sales in which the question
was whether the owner was entitled to proper notice. The change is
dramatically reflected when we compare today's decision with the
almost casual statement of Justice Holmes, writing for a unanimous
Court in Coffin Brothers v. Bennett, 277 U. S.
29 , 277 U. S. 31 (1928):

															"[N]othing is more common than to allow parties alleging
themselves to be creditors to establish in advance by attachment a
lien dependent for its effect upon the result of the suit."

															The only protection accorded to the debtor in that case was the
right to contest his liability in a post-deprivation
proceeding. Page 501 U. S. 30 It is both unwise and unnecessary, I believe, for the Court to
proceed, as it does in 501 U. S. from
its decision of the case before it to discuss abstract and
hypothetical situations not before it. This is especially so where
we are dealing with the Due Process Clause which, as the Court
recognizes, "unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances," ante p. 501 U. S. 10 . And
it is even more true in a case involving constitutional limits on
the methods by which the states may transfer or create interests in
real property; in other areas of the law, dicta may do little
damage, but those who insure titles or write title opinions often
do not enjoy the luxury of distinguishing between dicta and
holding.

															The two elements of due process with which the Court concerns
itself in 501 U. S. 18 Part
IV -- the requirement of a bond, and of "exigent circumstances" --
prove to be upon analysis so vague that the discussion is not only
unnecessary, but not particularly useful. Unless one knows what the
terms and conditions of a bond are to be, the requirement of a
"bond" in the abstract means little. The amount to be secured by
the bond and the conditions of the bond are left unaddressed -- is
there to be liability on the part of a plaintiff if he is
ultimately unsuccessful in the underlying lawsuit, or is it instead
to be conditioned on some sort of good faith test? The "exigent
circumstances" referred to by the Court are admittedly equally
vague; nonresidency appears to be enough in some states, an attempt
to conceal assets is required in others, an effort to flee the
jurisdiction in still others. We should await concrete cases which
present questions involving bonds and exigent circumstances before
we attempt to decide when and if the Due Process Clause of the
Fourteenth Amendment requires them as prerequisites for a lawful
attachment.

															JUSTICE SCALIA, concurring in part and concurring in the
judgment.

															Since the manner of attachment here was not a recognized
procedure at common law, cf. 499 U. S. Co.
v. Page 501 U. S. 31 Haslip, 499 U. S. 1 , 499 U. S. 24 (1991) (SCALIA, J., concurring in judgment), I agree that its
validity under the Due Process Clause should be determined by
applying the test we set forth in Mathews v. Eldridge, 424 U. S. 319 (1976); and I agree that it fails that test. I join Parts I and III
of the Court's opinion, and concur in the judgment of the
Court.