Byron White

“ 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. ”

“ 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. ”

“ 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 pre-existing interest. ”

“ 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, 41 S.Ct., at 435. Generally speaking, attachment measures in both England and this country had several limitations that reduced the risk of erroneous deprivation which Connecticut permits. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The State elected to intervene in the appeal, and has fully participated in the proceedings before this Court.↑ Our summary affirmance in Spielman-Fond, Inc. v. Hanson's Inc., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (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. ”

“ 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, § 52-278e (c) ; [6] notice for such a hearing, § 52-278e (b) ; judicial review of an adverse decision, § 52-278l (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. ”

“ 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) . [4] 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 v. Family Finance Corp. ”

“ 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.↑ One State, Pennsylvania, has not had an attachment statute or rule since the decision in Jonnet v. ”