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Attachment of Property Without Hearing Unconstitutional
Description Appeals court held a Washington state statute that allows the attachment of real property without prior notice and a hearing to be unconstitutional. Attachment that occurs in a dispute over construction must allow prior notice and hearing to have adequate due process.
Topic Real and Personal Property
Key Words Attachment, Due Process
C A S E   S U M M A R Y
Facts After a dispute about the construction of their home, the Johnstons sued Tri-State, the homebuilder. Using a Washington state statute, they sued to attach Tri-State's real property without prior notice or hearing. The court ordered the issuance of the writ of attachment and the sheriff attached the property. Rather than seek a post-attachment hearing as the statute allows, Tri-State sued in federal court, contending that the statute violates the due process clause of the Fourteenth Amendment. District court held the statute to be constitutional; Tri-State appealed.
Decision Reversed. The attachment statute fails the test applied to determine if due process has been satisfied. The affected party has a significant interest at stake; there is a risk of erroneous deprivation; the Johnston's had no prior interest in the property that was attached; there were no special circumstances that would prevent the use of notice and hearing before attachment; and the state's interest in forgoing a hearing before attachment was minimal.
Citation Tri-State Development, Inc. v. Johnston, 160 F.3d 528 (9th Cir., 1998)

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