You asked whether Connecticut law on pre-judgment attachment of real estate meets the U.S. Supreme Court's requirements in Connecticut v. Doehr.

SUMMARY

In 1991, the U.S. Supreme Court ruled that Connecticut's statute allowing pre-judgment attachment of real estate without a hearing was unconstitutional. Under the statute, a plaintiff could attach real estate based on an oath or affidavit showing probable cause to support his underlying claim (CGS § 52-278e). The Court specifically ruled that the statute violated due process because it allowed an attachment of real property without a hearing and without requiring a showing of some extraordinary circumstances that required immediate action.

PA 93-431 made a number of changes to the pre-judgment remedy statutes and eliminated the specific language invalidated by the Supreme Court. Under the act, a pre-judgment attachment of real estate or other property without a hearing is only possible under specific circumstances. Under the act, there must be a reasonable likelihood that the defendant (1) has hidden or will hide himself so that process cannot be served on him; (2) is about to fraudulently dispose of any of his property with intent to hinder, delay, or defraud his creditors; or (3) has fraudulently hidden or withheld money or property that could satisfy his debts. This likely satisfies the Supreme Court's requirement that pre-judgment attachments without hearings occur only under extraordinary circumstances.

The Court also criticized the sufficiency of the affidavit required from the plaintiff to show probable cause to sustain the validity of his underlying claim. The act modified the statute to require the plaintiff to present in his affidavit facts sufficient to show that a judgment at least in the amount of the pre-judgment remedy sought will be rendered in the plaintiff's favor (taking into account any known defenses, counterclaims, or setoffs).

We did not locate any other cases successfully challenging the constitutionality of this statute. We have attached a copy of the case and PA 93-431.

CONNECTICUT V. DOEHR

The Supreme Court in Connecticut v. Doehr reasoned as follows (501 U.S. 1 (1991)).

1. The plaintiff attached the defendant's real estate after filing a claim for damages alleging assault and battery.

2. Most due process challenges involve government actions. This case involves a lawsuit between two private parties and the government's interests are less significant. In this situation, the test of whether a statute satisfies due process (from Matthews v. Eldridge, 424 U.S. 319 (1976)) is modified and the Court must consider the (a) private interests affected, (b) risk of erroneous deprivation of property through the procedures and the probable value of additional or alternative safeguards, and (c) interest of the party seeking the remedy, with regard for the interest of the government in the procedure.

3. The private interest affected is a significant property interest. Attachment has many effects including impairing the ability to sell property and tainting credit ratings.

4. The risk of erroneous deprivation of property is substantial because the statute only requires a plaintiff to show that he has "probable cause" for his underlying claim in order to attach property. The meaning of "probable cause" is obscure and it creates too great a risk under any interpretation. A judge bases his decision only on an affidavit from the plaintiff. Cases such as these do not lend themselves to documentary proof and a judge cannot make a realistic assessment on that basis. The statute's safeguards include expeditious post-attachment adversarial hearings, notice, judicial review, and double damages for claims filed without probable cause. But these safeguards are inadequate.

5. The plaintiff's interest in this procedure is minimal. He does not have an interest in the real estate or allege that the defendant will transfer the property or otherwise render it unavailable to satisfy a judgment. No government interest affects this analysis.

6. A judge can accurately assess the merits of a claim between a creditor and debtor based on documents but he cannot easily assess the merits of injury claims on this basis.

7. Nearly every state requires a pre-attachment hearing, showing of extraordinary circumstances, or both before permitting an attachment.

8. The statute violates due process because it fails to provide a pre-attachment hearing without at least requiring a showing of some extraordinary circumstances.

CR:lc