501 U.S. 1 (1991)
In March 1988, John F. DiGiovanni submitted an application to the Connecticut Superior Court for a prejudgment attachment in the amount of $75,000 on Brian K. Doehr's home in Meriden, Connecticut, in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr.1 DiGiovanni had no pre-existing interest in Doehr's real estate, and the suit did not involve the property.2 Connecticut law authorized prejudgment attachment of real estate without prior notice or hearing upon verification by oath that there was probable cause to sustain the validity of the plaintiff's claim.3
DiGiovanni accompanied the application with an affidavit stating that the facts set forth in his complaint were true, that he had been willfully, wantonly and maliciously assaulted by Doehr resulting in a broken left wrist, an ecchymosis to his right eye, and other injuries, and that he had expended sums for medical care and treatment.4 The affidavit concluded that these facts were sufficient to show probable cause that judgment would be rendered for the plaintiff.5 On March 17, 1988, the Superior Court judge found probable cause to sustain the validity of the claim and ordered the attachment on Doehr's home to the value of $75,000.6
The sheriff attached the property on March 21, 1988.7 Doehr first learned of the attachment after it had been recorded on the land records.8 He had not yet been served with the complaint.9 The attachment notice informed Doehr of his right to a hearing to claim that no probable cause existed, to request that the attachment be vacated or modified or a bond substituted, or to claim that some portion of the property was exempt.10
Doehr filed suit in the United States District Court for the District of Connecticut claiming that the Connecticut statute violated the Due Process Clause of the Fourteenth Amendment.11 The District Court granted summary judgment upholding the statute.12 The Court of Appeals for the Second Circuit reversed.13 The Supreme Court granted certiorari to resolve the conflict of authority regarding the statute's constitutionality.14
Whether a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without requiring the plaintiff to post a bond satisfies the Due Process Clause of the Fourteenth Amendment?15
The Due Process Clause of the Fourteenth Amendment prohibits a state from authorizing prejudgment attachment of real property without prior notice and hearing absent a showing of exigent circumstances. It requires additional safeguards such as a bond when the risk of erroneous deprivation is substantial. The adequacy of procedures is determined by balancing the private interest affected, the risk of erroneous deprivation through the procedures used, and the interests of the party seeking the remedy under the Mathews v. Eldridge test.16
No. DiGiovanni submitted an application for a $75,000 attachment on Doehr's home based on a one-sided affidavit alleging assault and battery with no pre-existing interest in the property and no allegation that Doehr was about to transfer or encumber the real estate, and the Connecticut statute allowed the Superior Court to order the attachment upon a probable cause finding without prior notice, hearing, exigent circumstances, or bond, after which the sheriff recorded the attachment before Doehr received notice or the complaint was served.17
The Connecticut statute violates the Due Process Clause of the Fourteenth Amendment as applied to this case.18
Related opinions on this issue
Justice Marshall joined only Part I of the Court’s opinion.19 He agreed that the Connecticut statute is unconstitutional because it permitted prejudgment attachment of real property without prior notice or hearing.2021 He would have gone further than the majority, however, and held that any prejudgment attachment of real property without prior notice and hearing violates the Due Process Clause of the Fourteenth Amendment, regardless of other circumstances.22
Marshall's position reflects a categorical view that the Due Process Clause demands predeprivation notice and hearing in all real property attachment cases to prevent even temporary impairments to ownership rights.
Justice Blackmun joined Parts I, II, and III of the Court’s opinion.23 He agreed that the Connecticut statute violates the Due Process Clause.2425 He wrote separately to emphasize that the Court’s decision does not preclude the States from enacting statutes that provide for prejudgment attachment in appropriate circumstances where additional safeguards are present.26
Blackmun's concurrence clarifies that the ruling leaves room for carefully tailored state procedures that incorporate protections such as bonds or exigency showings to balance plaintiff and defendant interests.
Justice O’Connor concurred in the judgment.27 She agreed that the Connecticut statute violates the Due Process Clause.28 She stressed that the Constitution does not always require a bond or exigent circumstances in every case.29
What due process requires is a careful balancing of the interests at stake under the Mathews framework.30 In this case, the balance tipped in favor of the defendant due to insufficient protections for the property owner against erroneous attachment based on a one-sided affidavit in a tort action.31
Whether due process requires the plaintiff to post a bond or other security in addition to requiring a hearing or showing of some exigency for prejudgment attachment?32
Due process generally requires the plaintiff to post a bond in addition to a hearing or exigency showing for prejudgment attachment.33 Even with those safeguards the risk of erroneous deprivation remains unacceptably high.34 A bond provides compensation for harms that a postattachment hearing cannot fully redress. Historical and contemporary state practices confirm the necessity of all three protections.35
Yes. Although a majority did not reach the bond question, the plurality determined that the absence of a bond left the danger of wrongful deprivation unacceptably high even with a hearing or exigency requirement, because the one-sided affidavit in the assault claim created substantial risk that Doehr's property would be encumbered during suits that ultimately fail, and Connecticut's double damages remedy was inadequate to substitute for a bond given problems of proof, settlement effects, and attorney advice defenses.36
Due process requires a bond in addition to a hearing or showing of exigency for prejudgment attachment.37
Related opinions on this issue
Joined by Justice Blackmun
Chief Justice Rehnquist joined Parts I, II, and III but declined to join Part IV.38 He argued that discussion of bonds and exigent circumstances in hypothetical cases was unnecessary and unwise.3940 The holding should be limited to the facts of this case where there was no pre-existing interest in the property, no showing of exigency, and no bond required.41
He noted that the attachment affected real property without physical seizure, distinguishing it from prior cases involving chattels.42 Rehnquist cautioned against broad dicta that could complicate title practice and insurance in real property matters.
Justice Scalia joined Parts I and III and concurred in the judgment.43 He agreed that the attachment procedure was not a recognized procedure at common law.4445 He further agreed that its validity under the Due Process Clause should be determined by applying the Mathews v. Eldridge test, which the Connecticut statute failed.46
Because the manner of attachment here was not a recognized procedure at common law, the validity under the Due Process Clause should be determined by applying the Mathews test rather than historical practice alone.47 He concluded that the statute failed that test.48