e. Pre-hearing Writ of Restitution

In commercial cases, RCW 59.12.090, on its face, permits the plaintiff to apply to the court for a writ of restitution any time after commencement of the action after posting a bond – i.e., without a hearing of which the tenant/defendant has notice. RCW 59.12.090. The defendant must be served with the writ and has three days to stay execution of the writ by posting a counter bond. RCW 59.12.100. However, if the defendant fails to do so, then the sheriff may evict the defendant.

This process has been upheld as constitutional both under the federal and state constitutions. Morris v. Healy Lumber Co., 33 Wash. 451, 458-9, 74 P. 662 (1903) (neither the Fourteenth Amendment to the Constitution of the United States nor Article 3, Section 1 of the Constitution of the State of Washington are offended by issuance of a prejudgment writ under this statute). The rationale used by the courts in upholding this statute is that “the statute does not deprive the defendant of his property, but merely the right to the possession of it, if he fails or neglects to give a bond, pending the suit, and unless the plaintiff prevails in the action a return of the property to the defendant must follow.” State v. Prather, 19 Wash. 336, 338, 53 P. 344 (1898).

At least one modern court held that issuance of a pre-hearing writ by the court does not offend the notion of due process. See Port of Longview, 96 Wn. App. at 446. In Port of Longview, the court, without citation to authority, stated that “[a] writ of restitution does not have any immediate effect on the tenant’s property interest.” Id. The court reasoned that RCW 59.12.100 requires the sheriff to serve the writ upon the defendant, to wait three days, and then only to execute once the defendant has been served. Id. The court determined that this interval provided the defendant with notice and an opportunity to be heard before their property rights were affected. Id.

There is an argument, however, that the Port of Longview court was incorrect and that issuing a writ of restitution without notice to the defendant/tenant, violates due process. In 1991, the Supreme Court of the United States announced the rule that “prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond” violated the due process clause of the Fourteenth Amendment. Connecticut v. Doehr, 501 U.S. 1, 4, 111 S.Ct. 2105 (1991). Four of the Justices also noted that even the inclusion of a bond requirement did not protect due process rights. Id. at 23 (opinion of White, J.).

The Ninth Circuit came to a substantially similar conclusion, holding that a prejudgment writ attachment of real property without notice to the defendant and a hearing violated due process in spite of the requirement of a bond. Tri-State Development, Ltd. v. Johnston, 160 F.3d 528, 534 (9th Cir. 1998). The plaintiffs in Tri-State were homeowners who used a Washington prejudgment attachment statute to attach the property of a contractor who had worked on their home. Id. at 529. The court determined that the statute was unconstitutional as applied to the facts of the case because (1) the private interests at stake were significant, (2) the risk of erroneous deprivation was high, and (3) the plaintiff had no prior interest in the attached property. Id. at 531. Additionally, the court considered the statutory bond requirement at issue in the case, scrutinizing the fact that the bond was based on the amount sought by the plaintiff and the difficulties involved with recovering on an attachment bond under Washington law. Id. at 533. After analyzing the totality of the circumstances, the Tri-State court held that the bond requirement did not cure the constitutional defects of prejudgment attachment, obtained without notice to the defendant, as applied to the facts presented in the case. Id. at 533.

The Tri-State holding was expanded in a recent Washington State Court of Appeals case, where the court held that counsel could incur personal liability under 42 U.S.C. § 1983 (violation of civil rights) for attaching real property without affording the property owner a hearing, so long as the attorney’s knowledge of the unconstitutionality of that procedure could be established. Van Blaricom v. Kronenberg, 112 Wn. App. 501, 514-15, 50 P.3d 266 (2002).

Thus, notwithstanding the Port of Longview case, one should expect future constitutional challenges to issuance of a writ of restitution without prior notice and a hearing.