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42
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JOURNAL OF PROCEEDINGS
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Aug. 6
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been given to the homeowner by registered mail with return
receipt requested.
First, in light of the decisions of the Court of
Appeals in Barry Properties v. Fick Brothers, 277 Md. 15
(1976) and in Residential Industrial Loan Co. v. Weinberg,
279 Md. 483 (1977), cert, denied, Frederick Contractors,
Inc. v. Metropolitan Federal Savings and Loan Ass'n of
Bethesda, 434 U.S. 876 (1977), a serious question is raised
as to whether the bill's procedure for the creation of a
lien on the homeower's property is consistent with the
requirements of procedural due process under the Fourteenth
Amendment of the federal constitution and Article 24 of the
Maryland Declaration of Rights.
Several issues are presented when analyzing a due
process question. First, in order for the requirement of
due process to be applicable, there must be "state action".
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
Secondly, the state action must result in a deprivation of a
property interest. Fuentes v. Shevin, 407 U.S. 67 (1972).
Finally, if state action deprives a person of a property
interest, it must be determined what procedural due process
is constitutionally required. Mitchell v. W. T. Grant Co.,
416 U.S. 600 (1974).
The decision in Barry Properties suggests that the
prejudgment remedy of Senate Bill 473, like the mechanic's
lien, involves state action. Barry Properties v. Fick
Brothers, supra, 277 Md. at 22-23 ("[M]echanics' liens
involve state action since they are created, regulated and
enforced by the State.") It is arguable that there is no
significant difference in the degree or type of state
participation in the proceedings of Senate Bill 473 as
compared with the statutes permitting prejudgment creditor
seizures that the U.S. Supreme Court has voided on due
process grounds. See North Georgia Finishing, Inc. v.
Di-Chem, Inc., 419 U.S. 601 (1975) (garnishment); Mitchell
v. W. T. Grant Co., supra (sequestration under a vendor's
lien); Fuentes v. Shevin, supra (replevin); Sniadach v.
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
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