Connecticut v. Doehr

The attachment did not dispossess Doehr of his home, but it could cloud title, impede a sale or other transfer, damage his credit, reduce his ability to obtain a home-equity loan or new mortgage, and potentially place an existing mortgage in technical default. Due process protects significant temporary or partial impairments of property rights, not only complete physical takings.

The Court distinguished cases involving mechanics' liens or lis pendens. Those procedures may rest on a claimant's preexisting interest in the particular property, such as labor or materials incorporated into the land, or may merely notify third parties of litigation seeking to establish an already-claimed property interest. DiGiovanni, by contrast, had no prior interest in Doehr's home and sought attachment solely to preserve assets for a possible future tort judgment.

The Court applied the Mathews v. Eldridge balancing approach, adapted for disputes between private parties. The inquiry considers the defendant's affected property interest, the risk of erroneous deprivation and the value of additional safeguards, and principally the interest of the private party seeking attachment, while also accounting for any related governmental interest.

The risk of error was substantial. Connecticut permitted attachment on the basis of a skeletal, one-sided affidavit and a potentially conclusory complaint. Whatever "probable cause" meant under the statute—subjective good faith, facial legal sufficiency, or likelihood of success—these ex parte submissions could not reliably establish that Doehr was likely to lose a fact-intensive assault-and-battery dispute.

A tort claim based on an alleged fight is especially ill suited to reliable ex parte resolution. Unlike a creditor's claim for an unpaid debt, it ordinarily turns on competing accounts, credibility, and facts that do not lend themselves to documentary proof. A prompt postattachment hearing could end an improper attachment, but it could not undo the interim deprivation that advance notice and a hearing might have prevented.

DiGiovanni's interest in attachment was minimal. He had no lien or other preexisting interest in Doehr's home, and he made no showing that Doehr was likely to flee, conceal assets, fraudulently transfer property, or otherwise defeat collection. Such exigent circumstances can justify postponing notice and a hearing, but no comparable justification existed here.

The Court also found support in history and contemporary state practice. Historically, attachment was commonly limited to creditor claims and circumstances threatening satisfaction of a judgment, and most States required either a preattachment hearing, a showing of exigency, or both. Connecticut's authorization of ex parte real-estate attachment in an ordinary tort case therefore fell short of due process.

The four-Justice plurality reasoned that a bond protects the defendant against losses caused by a wrongfully issued attachment. Even where exigent circumstances justify an ex parte attachment, the defendant otherwise bears the risk of harm until a hearing establishes whether the attachment was warranted.

The plurality further concluded that an adversarial probable-cause hearing alone does not eliminate the need for security. Such a hearing yields only a preliminary prediction, especially in a fact-dependent tort case, and a defendant may still suffer serious injury from an attachment in a case the plaintiff ultimately loses.

Connecticut's double-damages remedy for actions begun without probable cause was not an adequate substitute. Its scope was uncertain, recovery could be delayed until the underlying litigation ended, settlement could bar relief, reliance on counsel could furnish a defense, and the original plaintiff might lack assets to satisfy a later judgment.

The plurality rejected the converse proposition that a bond could replace notice and a hearing. Money damages cannot fully repair lost opportunities to sell property, borrow against equity, preserve credit, or avoid mortgage-default consequences. In the plurality's view, due process generally requires both meaningful procedural review and security against wrongful attachment.