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Subject: 90-143 -- OPINION, CONNECTICUT v. DOEHR




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 90-143



    CONNECTICUT and JOHN F. DIGIOVANNI, PETI- TIONERS v. BRIAN K. DOEHR

on writ of certiorari to the united states court of appeals for the second
circuit

[June 6, 1991]




    Justice White delivered an opinion, Parts I, II, and III of which are
the opinion of the Court. {9}

    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 extraor dinary 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.

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 pre-existing 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 pre judgment 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 pre judgment remedy requested is for an
attachment of real property . . . ."  Conn. Gen. Stat. MDRV 52-278e (1991).
{1}


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, DiGio vanni 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 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. MDRV 52-278e(b) (1991).
    Rather than pursue these options, Doehr filed suit against DiGiovanni
in Federal District Court, claiming that MDRV 52-278e (a)(1) was
unconstitutional under the Due Process Clause of the Fourteenth Amendment.
{2}  The District Court upheld the statute and granted summary judgment in
favor of DiGio vanni.  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). {3}
Judge Pratt, who wrote the opinion 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 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 preattachment 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 609-610.  Similarly, in
Mathews v. Eldridge, 424 U. S. 319, 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 factspecific event of a fist fight 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 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 Con necticut
Supreme Court, which had previously upheld MDRV 52278e(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. --- (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 decided against "a factual and legal background sufficiently different
. . . that it does not require the invalidation of the Louisiana
sequestration statute."  Id., at 615.  Those differences included
Louisiana's provision of an immediate postdeprivation 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 lien-holder's
interest in preventing waste or alienation of the encumbered property.
Id., at 615-618.  In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.
S. (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 postdeprivation hearing.
Id., at 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, at 334
(quoting Cafeteria Workers v. McElroy, 367 U. S. 886, 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 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 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 im plicate the Due Process
Clause."  Tulsa Professional Col lection Services, Inc. v. Pope, 485 U. S.
478, 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, at
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.
    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, at 340; Mitchell, supra, at
613.  But the Court has never held that only such extreme deprivations
trigger due process concern.  See Buchanan v. Warley, 245 U. S. 60, 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, 85 (1988) (citing Mitchell,
supra, at 604; Hodge v. Muscatine County, 196 U. S. 276, 281 (1905)). {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 contingincy -- the award of damages to the plaintiff which the
defendant may not be able to satisfy.  See Ownbey v. Morgan, 256 U. S. 94,
104-105 (1921); R. Thompson & J. Sebert, Remedies: Damages, Equity and
Restitution MDRV 5.01 (1983).  For attachments before judgment, Connecticut
mandates that this determi nation be made by means of a procedural inqury
that asks whether "there is probable cause to sustain the validity of the
plaintiff's claim."  Conn. Gen. Stat. MDRV 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. MDRV 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., disenting).
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 25-26.  Ledgebrook
Condominium Assn., supra, 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 pre sents 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 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, selfserving, 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 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, 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]" postattachment adversary hearing, MDRV 52-278e(c);  {5}
notice for such a hearing, MDRV 52-278e(b); judicial review of an adverse
decision, MDRV 52-278l(a); and a double damages action if the original suit
is commenced without probable cause, MDRV 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, at 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 86.
    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, at 609; Fuentes, supra, at 90-92; Sniadach,
395 U. S., at 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. 15 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 104.  Generally speaking,
attachment measures in both England and this 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, 15 40-82 (1866) (hereinafter Drake); 1 R.
Shinn, Attachment and Garnishment MDRV 86 (1896) (hereinafter Shinn).
Attachments, moreover, were generally confined to claims by creditors.
Drake 15 9-10; Shinn MDRV 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, at
609-610.  Finally, as we will discuss below, attachment statutes
historically required that the plaintiff post a bond.  Drake 15 114-183;
Shinn MDRV 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 preattach ment hearing, a showing of some
exigent circumstance, or both, before permitting an attachment to take
place.  (See appendix.)  Twenty-seven States, as well as the District of
Columbia, permit attachments only when some extraordinary circumstance is
present.  In such cases, preattachment hearings are not required but
postattachment hearings are provided.  Ten States permit attachment without
the presence of such factors but require prewrit 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. {6}  Three
States always require a preattachment 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 preattachment
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. {7}
    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 610, 611 (Powell, J., concurring in
judgment); id., at 619 (Blackmun, J., dissenting); Mitchell, 416 U. S., at
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 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 postattachment 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, supra, at
610, 619; Di-Chem, supra, at 613 (Powell, J., concurring in judgment); id.,
at 619 (Blackmun, J., dissenting); Fuentes, 407 U. S., at 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 like lihood 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, at 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 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 101-102 n. 1; Fuentes, supra, at 73, n. 6, 75-76, n.
7, 81-82; Mitchell, supra, at 606, and n. 6; Di-Chem, supra, at 602-603, n.
1, 608.
    The State stresses its double damages remedy for suits that are
commenced without probable cause.  Conn. Gen. Stat. MDRV 52-568(a)(1). {8}
This remedy, however, fails to make 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 MDRV 52568(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 52-278e(a)(1) does not require a plaintiff to show exigent
circumstances nor any pre-existing 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
604609; Fuentes, supra, at 90-92; Sniadach, 395 U. S., at 339.

B
    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 preattachment and
postattachment 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
postdeprivation hearing at the very least.  Mitchell, supra, at 606;
Di-Chem, 419 U. S., at 606-607.  Every State but one, moreover, expressly
requires a pre attachment or postattachment hearing to determine the
propriety of an attachment.
    The necessity for at least a prompt postattachment 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
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 imme diately after
attachment, neither is it sufficient basis for not providing a
preattachment 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 postattach ment 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 15 4, 114; Shinn 15 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 preattachment
hearing, a showing of some exigency, or both, and all but one expressly
require a postattachment hearing when an attachment has been issue ex
parte.  (See 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.

V
    Because Connecticut's prejudgment remedy provision, Conn. Gen. Stat.
MDRV 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.



90-143 -- APPENDIX


CONNECTICUT v. DOEHR



90-143 -- APPENDIX


CONNECTICUT v. DOEHR





APPENDIX


Prejudgment Attachment Statutes



|\Attachment\
|Pre-Attach\Only in Exi-\Pre-Attach
|Hrg Required\gent Circs;\Hrg Even in
|Unless Exi-\No Pre-Attach\Most Exi-\Bond\Post-Attach |gent Circs\Hrg
Required\gent Circs\Required\Hrg Required



Alabama||x||x|x

Alaska|Pre-attachment hrg always required.|x|

Arizona|x|||x|x
Arkansas||x||x|x
California|x|||x|x
Colorado||x||x|x

Connecticut|x (or unless attachment of real estate)||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
Maine|x||||x
Maryland||x||x|x
Massachusetts|x|||x/o1|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|x2
Texas|||x|x|x
Utah|||x|x|x
Vermont|x||||x
Virginia||x||x|x
Washington|||x|x3|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.

------------------------------------------------------------------------------
1
    The complete text of MDRV 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."

2
    Three other plaintiffs joined Doehr, challenging MDRV 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.

3
    The Court of Appeals invited Connecticut to intervene pursuant to 28 U.
S. C. MDRV 2403(b) after oral argument.  The State elected to intervene in
the appeal, and has fully participated in the proceedings before this
Court.

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, 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 pre-existing 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 ---.

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 MDRV 114
(1988).  Under state law at least 12 days must elapse between service on
the defendant and the return date.  Conn. Gen. Stat. MDRV 52-46 (1991).
The State counters that the postattachment hearing is available upon
request.  See Fermont Division, Dynamics Corp. of America v. Smith, 178
Conn. 393, 397-398, 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 postseizure 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.

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).

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, 119, n. 14 (1985).  Here the
Court of Appeals rejected Doehr's argument that MDRV 52-278e(a)(1) violates
due process in failing to mandate a preattachment 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, 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.

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."

9
    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.