HARRY HUGHES, Governor

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Family Finance Corp., 395 U.S. 337 (1969) (garnishment). In
voiding these statutes, the Supreme Court necessarily found
that they sufficiently involved state action so as to
require due process protections.

However, it is far from settled that all creditor's
remedies involve state action. For example, it has been
held that the mere authorization of procedure by legislation
did not supply the State action element. Flagg Brothers,
Inc. v. Brooks, 436 U.S. 149, 157-166 (1978) (warehouseman's
lien). Moreover, it has been said that essentially private
actions do not become State action merely because State
officials perform ministerial functions, such as
recordation. See Parks v. "Mr. Ford", 556 F.2d 132, 141
(3rd Cir. 1977). This issue should be resolved in the next
few weeks by the Supreme Court in the case of Lugar v.
Edmondson Oil Company, Inc., 639 F.2d 1058 (4th Cir. 1981),
cert. granted, 101 S.Ct. 3078 (1981) (No. 80-1730) (argued,
Dec. 8, 1981).

Assuming that there is State action, the principles of
the Court of Appeals' decision in Barry Properties would
suggest the unconstitutionality of Senate Bill 473.

In Barry Properties, the Court of Appeals concluded
that the mechanic's lien constituted a significant taking of
property interest sufficient to invoke the due process
requirement. Under the statute a "subsisting lien" arose as
soon as materials were supplied or work performed and
constituted a "cloud on the property owner's title" such
that "not only will [it] be extremely difficult" for the
owner to legally alienate or further encumber the property,
but additionally, his equity will be diminished to the
extent of the lien." 277 Md. at 23-24.

The Court then examined the mechanic's lien law which
did not require a general contractor to give notice to the
property owner of the establishment of the lien prior to its
filing with a court but did require a subcontractor to
inform the owner in writing of his intention to claim a
lien. In holding such a procedure to be defective, the
Court said:

"[N]otice of intent to claim a lien,
which is the only 'notice' the owner is
required to receive prior to being made aware
of a suit to enforce the claim, is not, in
our judgment, adequate. The filing of a
claim to a lien, although recorded, also does
not give the property owner constructive
notice of the lien ... There is no provision
requiring any. hearing concerning the lien
prior to the filing of a suit to enforce it.
The statute is the same with respect to