There is no indication in Prevedini that such a constitutional claim was made. In fact, the constitutional right to a prompt hearing on a motion to discharge a notice of lis pendens was not recognized by our Supreme Court until its decision in Kukanskis v. Griffith , 180 Conn. 501, 430 A.2d 21 (1980), which was decided seven years after Prevedini .
To invoke the statutory process of section 52-278e, the verified affidavit must contain factual rather than conclusory allegations. Kukanskis v. Griffith, 180 Conn. 501, 504-05, 430 A.2d 21, 23 (1980). Before granting an ex parte attachment, the court must find probable cause solely from the facts within the four corners of the affidavit.
We note that the Supreme Court of Connecticut in invalidating Connecticut's lis pendens procedures has reached a similar conclusion. Kukanskis v. Griffith, 180 Conn. 501, 430 A.2d 21 (1980). As on most constitutional issues, however, we do not write on a blank slate.
This holding does not portend that the Rhode Island Supreme Court is poised to invalidate the lis pendens statute itself as unconstitutional. Defendants also rely upon the case of Kukanskis v. Griffith, 180 Conn. 501, 430 A.2d 21 (1980), in which the Supreme Court of Connecticut declared the Connecticut lis pendens statute unconstitutional because it did not comport with the due process requirements of the United States and Connecticut Constitutions. 430 A.2d at 25. Although similar to § 9-4-9 in some respects, the Connecticut statute "fail[ed] to provide even the barest minimum of due process protection" because it contained no provision for a timely hearing, either before or after the filing of a notice of lis pendens, and no notice requirement.
This court has previously considered the constitutional validity, under the fourteenth amendment to the federal constitution and article first, 10 of the Connecticut constitution, of both a mechanics lien statute and the previous lis pendens statute. Kukanskis v. Griffith, 180 Conn. 501, 430 A.2d 21 (1980); Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778, vacated, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975) (remanded to consider whether judgment based upon federal or state constitutional grounds, or both), aff'd on remand, 170 Conn. 155, 365 A.2d 393 (decision based on both state and federal constitutional grounds), cert. denied, 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976) (adequate state ground). In both decisions, we held that the absence of statutory provisions providing the property owner with a hearing "at a meaningful time and in a meaningful manner" violated due process principles under both the federal and state constitutions.
The court concludes underMatthews that this inquiry requires an examination of the "government function" involved — i.e. here, eminent domain — and a balancing of these factors. None of the cases cited by the plaintiffs involve the exercise of eminent domain power, Luedeke v. Village of New Palz, 63 F.3d 2d 215 (N.D.N.Y., 1999) (application of snow removal ordinance); U.S. v. James Daniel Good Real Property, 510 U.S. 43 (1993) (seizure of house through asset forfeiture statute); Connecticut v. Doehr, 501 U.S. 1 (1991) (prejudgment attachment on real estate);Kukansis v. Griffith, 180 Conn. 501 (1980) (lis pendens statute application). Before the concept was embedded in our constitutions, the states exercised the power of eminent domain.
The supporting affidavit must contain "factual rather than conclusory allegations." Kukanskis v. Griffith, 180 Conn. 501, 503 (1980) (discussing affidavit required to support ex parte application for prejudgment remedy). In addressing PJR applications, the "trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits."
The court notes, moreover, that the cases addressing lis pendens procedures consistently hold that such procedures deprive a person of a property interest significant enough to warrant Fourteenth Amendment protection. See, e.g., Chrysler Corp. v. Fedders Corp., 670 F.2d 1316, 1324-25 (3d Cir. 1982); Williams v. Bartlett, 189 Conn. 471, 478 n. 5, 457 A.2d 290 aff'd, 464 U.S. 801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983); Kukanskis v. Griffith, 180 Conn. 501, 509, 430 A.2d 21 (1980). Although the interests deprived by lis pendens may be less than the interests deprived by a prejudgment attachment, the interest deprived here is significant enough to implicate the requirements of due process.
"Section 52–326 provides that a lis pendens may be discharged only under ... very limited circumstances.... See §§ 52–322 and 52–324 of the General Statutes." Kukanskis v. Griffith, 180 Conn. 501, 507 n. 4, 430 A.2d 21 (1980). Section 52–326 provides: "The provisions of sections 52–322 and 52–324 shall apply, mutatis mutandis, to any lis pendens recorded according to the provisions of section 52–325...." (Footnote added.)
"The opportunity to be heard at a meaningful time and in a meaningful manner is constitutionally required to meet currently accepted standards of procedural due process in the area of property rights." Kukanskis v. Griffith, 180 Conn. 501, 509-10, 430 A.2d 21 (1980); Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992). We find that the trial court did not deprive the defendant of an opportunity to present evidence on her claims.