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44
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JOURNAL OF PROCEEDINGS
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Aug. 6
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the affidavit by a judicial officer, and the opportunity for
a prompt postseizure hearing. As the Court pointed out in
Barry, although the property owner might seek a declaratory
judgment to invalidate the mechanic's lien, according to
statute he was not entitled to an immediate hearing as
contemplated by the Supreme Court, but only to a "hearing in
the ordinary course of administering the court's trial
assignment calendar." Barry Properties, supra, at 31-32.
Senate Bill 473 contains none of the safeguards which
would overcome the absence of notice or a prior hearing.
Moreover, Senate Bill 473 would not satisfy the procedures
contained in the Arizona mechanic's lien law upheld in
Spielman-Ford, Inc. v. Hanson's, Inc., 379 F. Supp. 997 (D.
Ariz. 1973) (per curiam), aff'd, 417 U.S. 901 (1974) and
discussed in Barry Properties, supra, at 33-34.
In summary, under Senate Bill 473 there is a lien which
arises immediately upon the filing of a "statement of
homeowner's association lien" in the land records and in a
nonjudicially determined amount, thereby leaving the
property owner wholly unable to dispose of his property
pending the ultimate determination of the amount of the lien
in a foreclosure proceeding. If state action existed,
clearly, such a scheme would constitute a taking of property
without due process of law under the teaching of Barry
Properties. See also Residential Industrial Loan Co. v.
Weinberg, supra. However, because there is considerable
doubt as to whether the remedy of Senate Bill 473 involves
State action, we cannot conclude that the bill is
unconstitutional.
Secondly, the title of Senate Bill 473 provides that
certain assessments by homeowners' associations are liens on
the homes of their members. The body of the bill, however,
provides that the lien attaches to not only the "house," but
also to the "land under the house" and "any and all rights
or property to which the member may be entitled by virtue
of his ownership of the house." However, the word "home"
has been defined as "[a] house in one respect, but in a
proper sense including [es] not only the house, but the
entire surroundings and appurtenances enjoyed with the
house." Ballentine's Law Dictionary, 564 (3rd ed. 1969).
In testing the conformity of the title of a bill to the
constitutional mandate of Article III, Section 29 of the
Maryland Constitution, the courts are disposed to uphold
rather than strike down the enactment. Since every
presumption favors its validity, it cannot be voided unless
clearly in contravention of the Constitution; a reasonable
doubt in its favor being sufficient to sustain it. Atkinson
v. Sapperstein, 191 Md. 301 (1948); Madison National Bank v.
Newrath, 261 Md. 321 (1971). Therefore, in light of this
standard of review and of the definition of "home," we
conclude that the tile is not so affirmatively misleading so
as to be defective.
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