(dissenting) — The government violated the property owners' constitutional right to due process when it seized their homes. I therefore dissent. The majority jeopardizes the timely process of forfeiture of property even though the constitutional requirements of notice and an opportunity for a hearing are simple to institute and no showing of exigent circumstances has been made. The majority uses an argument not advanced, argued or briefed by the State to save the constitutionality of these seizures. The majority's approach fails because the United States Supreme Court considered and rejected this approach in Connecticut v. Doehr,_U.S._, 115 L. Ed. 2d 1, 111 S. Ct. 2105 (1991), its most recent opinion regarding ex parte deprivation of real property interests.
This case involves a homeowner's due process rights under the fourteenth amendment to the United States Constitution when the State, in the absence of exigent circumstances, tries to seize the house using only ex parte procedures. Exigent circumstances do not exist in this case; the State delayed seizing the subject properties for over half a year. Where exigent circumstances are absent, the majority of federal cases have required adversarial, not ex parte, hearings before the government can seize a house. Majority, at 83. The majority's attempt to distinguish these federal cases cannot be squared with the United States Supreme Court's opinion in Doehr and other federal cases. These cases demonstrate that the presence or absence of exigent circumstances remains a crucial factor in determining the constitutionality of ex parte procedures. When exigent circumstances are absent, the government's interest in seizing real property through ex parte procedures must give way to the property owner's superior interest. Because the ex parte seizures violated due process, the statute is unconstitutional as applied to seizing the homes in this case. I would affirm the trial courts' dismissal of the State's complaints.
This case is governed by the threefold inquiry established in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. *94Ct. 893 (1976). In Mathews, the Court developed a 3-prong test for determining what procedures are required under due process. Under this test, a court considers: (1) "the private interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, at 335.
The Supreme Court's opinion in Doehr demonstrates the proper application of the Mathews 3-part test in this case. In Doehr, a plaintiff in a civil action for assault and battery obtained a prejudgment attachment on the defendant's house. The judge ordered the attachment on the basis of an ex parte hearing. The defendant challenged the attachment as violating his due process rights because he was deprived of property without prior notice and an opportunity for a hearing. The Supreme Court applied the Mathews test in Doehr and held that ex parte attachment of the defendant's home violated due process. The Court's analysis applies directly to the present cases,1 yet the majority disregards it.
1. The Property Owner's Interest.
Under the first prong of the Mathews test, we must evaluate the defendants' interest in protecting their houses from being seized under RCW 69.50.505. The majority properly characterizes this interest as "significant". Majority, at 86. *95In Doehr, the Court held that a similar interest in protecting houses from prejudgment attachment was "significant", concluding it was "subject to the strictures of due process." Doehr, 111 S. Ct. at 2113 (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85, 99 L. Ed. 2d 75, 108 S. Ct. 896 (1988)). The Court stated:
[T]he property interests that attachment affects are significant. For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause.
Doehr, 111 S. Ct. at 2112-13.
Seizing a house under the Washington statute in this case similarly restricts the owner from alienating or encumbering the property. RCW 69.50.505(b). Moreover, the intrusion involved in this type of seizure does not stop here. The government's seizure enables it, under the guise of protecting its forfeiture interests, to control the owner's use — and arguably even the possession — of the home. The government has required owners to enter into occupancy agreements in order to maintain possession of their property, or even to regain possession after being evicted from the property dining the seizure. See, e.g., In re Kingsley, 802 F.2d 571, 579 (1st Cir. 1986); United States v. Premises & Real Property, 889 F.2d 1258, 1261 (2d Cir. 1989) (Livonia Rd.). Occupancy agreements restrict the owner's use of the property, can render the owner liable for damage to the property, and even provide for governmental entry and inspection. See Kingsley, at 579.
The majority attempts to preserve the constitutionality of the statute by construing the term "seizure" as establishing only an inchoate property interest in the seizing agency. Majority, at 85. By limiting the scope of the seizure in this manner, the majority concludes that this temporary impact on the private interest is less than that of a permanent or physical dispossession of the property, thereby justifying an *96ex parte procedure. Majority, at 86 (citing Doehr, 111 S. Ct. at 2113). In striking down a similar ex parte procedure in Doehr, however, the Supreme Court stated:
the Court has never held that only such extreme deprivations trigger due process concern. To the contrary, our cases show that even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection.
(Citation omitted. Italics mine.) Doehr, 111 S. Ct. at 2113.
Not only is this level of intrusion on property ownership significant, but as even the majority concedes, a homeowner's expectation of privacy and freedom from governmental intrusion merits special constitutional protection. Majority, at 83-84 (citing Premises & Real Property, at 1264 (Livonia Rd.)). Thus, this level of intrusion, coupled with the special constitutional protections that apply to a person's house, renders the homeowner's interest significant.
2. The Risk of Erroneous Deprivation.
Under the second prong of Mathews, we must evaluate the risk that ex parte procedures will erroneously deprive an owner of property and determine if requiring an adversarial hearing will provide greater protection.
The majority characterizes the risk of erroneous deprivation in this case as "minimal" because the ex parte determination of probable cause concerns " 'uncomplicated matters that lend themselves to documentary proof'". Majority, at 86 (quoting Doehr, 111 S. Ct. at 2114 (quoting Mitchell v. W.T. Grant Co., 416 U.S. 600, 609, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974))). The majority's only explanation for this conclusion is that the affidavits presented below provided sufficient information for the judges to determine that a substantial nexus existed between the real property and its illegal use. Majority, at 86.
This analysis, however, fails to fully take into account the Supreme Court's opinion in Doehr. The Court stated: "Unlike determining the existence of a debt or delinquent payments, the issue [in a claim of tortious assault] does not concern 'ordinarily uncomplicated matters that lend themselves to *97documentary proof.' " (Italics mine.) Doehr, 111 S. Ct. at 2114 (quoting Mitchell, at 609). The existence of a debt and payment delinquencies may be objectively determined by simply examining the relevant documentation. In Doehr, however, the deprivation of property under the attachment statutes turned on factual contingencies that could not be determined by objective documentation. Doehr, 111 S. Ct. at 2113.
This case also involves factual inquiries. The majority's analysis suggests that the probable cause hearing only requires deciding whether a "substantial nexus" exists between the real property and the illegal drug activity. More is involved, however. The judge must not only find a substantial nexus hut also determine that the defendant knew of the illegal activity. See majority, at 76-77; RCW 69.50-.505(a)(8). Knowledge issues are not "ordinarily uncomplicated matters" susceptible to documentary proof; rather, they involve fact-intensive determinations based on evaluating circumstantial evidence. See Reardon v. United States, 947 F.2d 1509, 1519 (1st Cir. 1991). They create a far greater risk of erroneous deprivation than the objectively determinable issues concerning the existence of debt or delinquent payments.
Moreover, Doehr emphasizes that making "realistic assessments" of the merits of a case based on ex parte showings is difficult because these showings can be "one-sided, self-serving, and conclusory". Doehr, 111 S. Ct. at 2114. The Court noted:
The likelihood of error that results illustrates that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172, 71 S.Ct. 624, 647-649, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring).
Doehr, 111 S. Ct. at 2114.
The fact that the property owners are entitled to notice and an adversarial hearing after the seizure does not materially reduce the risk of erroneous deprivation. Even if *98a later hearing reveals that probable cause did not actually exist, this postseizure finding "would not cure the temporary deprivation that an earlier hearing might have prevented". Doehr, 111 S. Ct. at 2115. Thus, the ex parte procedures create a considerable risk that real property will be erroneously seized.
3. The Governmental Interest.
Under the third prong of Mathews, we must evaluate the State's interest, including the function involved and any fiscal and administrative burdens that additional procedures would entail. Mathews, at 335. The majority finds that the State's interest in these cases is "significant" because the Legislature has expressed a strong interest in deterring crime through the seizure and forfeiture of real property used for illegal drug purposes. Majority, at 86-87; Laws of 1989, ch. 271, § 211, p. 1298. The majority, however, has incorrectly framed the issue in analyzing the third Mathews prong. The issue is not the government's interest in seizing property, but the government's interest in doing so through ex parte procedures. See Doehr, 111 S. Ct. at 2115 (analyzing the extent of the plaintiff's interest in ex parte attachment of property, not the plaintiff's general interest in property attachment). The government's interest in seizing property to deter illegal drug use would not be affected by requiring an adversarial hearing rather than an ex parte proceeding. With an adversarial hearing, the State would still be able to initiate forfeiture proceedings, provide a significant deterrent to drug trafficking, and enhance revenue to partially defray crime control costs but, at the same time, protect the individual homeowner from an erroneous deprivation of property rights. The State can still effectuate its goal of deterring drug use without eroding the due process clause.
The majority also concludes exigent circumstances are irrelevant under Mathews in evaluating the strength of the government's interest. Majority, at 83. In Doehr, however, the Court emphasizes that the presence or absence of exigent circumstances is a critical part of the third Mathews
*99factor.2 Doehr, 111 S. Ct. at 2115-16. The Court held that the plaintiff’s interest in ex parte attachment of property was minimal because
there was no allegation that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. Our cases have recognized such a properly supported claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. Absent such allegations, however, the plaintiff's interest in attaching the property does not justify the burdening of Doehr's ownership rights without a hearing to determine the likelihood of recovery.
(Citations omitted. Italics mine.) Doehr, 111 S. Ct. at 2115. In other words, if exigent circumstances suggest a defendant is about to transfer or encumber the properly, then the government has a powerful interest in acting ex parte to prevent that action. Absent such exigent circumstances, however, the government's interest is minimal. Other federal courts construing Doehr have also concluded that, absent exigent circumstances, a plaintiff's interest in encumbering property is not sufficient to justify burdening the owner's property rights without first providing notice and an opportunity to be heard. See, e.g., United States v. James Daniel Good Property, 971 F.2d 1376 (9th Cir. 1992); United States v. Certain Real Property Located on Hanson Brook, 770 F. Supp. 722, 730 (D. Me. 1991).
The majority cites examples of exigent circumstances that justified seizure of property without a hearing in order to secure an important governmental interest. For example, the majority cites two Supreme Court cases involving the *100seizure of a yacht and cash. Majority, at 80-81 (citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974); United States v. Eight Thousand Eight Hundred & Fifty Dollars, 461 U.S. 555, 76 L. Ed. 2d 143, 103 S. Ct. 2005 (1983)). Because this type of property could be easily destroyed, hidden, or removed to another jurisdiction, the Court held that these exigent circumstances justified outright seizure without a hearing. But those cases involved personal property, which is easily moved or hidden; real property, on the other hand, is immovable. Furthermore, in this case as in Doehr, no allegations have been made of any pending transfers or encumbrances by the defendants. Finally, the State waited at least 6 months after confiscating the marijuana to initiate the seizure process. Exigent circumstances simply do not exist in this case. The majority's exclusion of these considerations from its Mathews analysis cannot be justified.
Requiring adversarial preseizure hearings would not involve undue financial or administrative burdens. The defendants already have a statutory right to adversarial post-seizure hearings. See RCW 69.50.505(e). Conducting these hearings prior to the seizure would not impose additional financial or administrative burdens on the State. See Doehr, 111 S. Ct. at 2115 ("[T]he State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate post-deprivation hearing."). Therefore, the State's interest in conducting ex parte seizures in these cases is minimal.
The balancing of the Mathews factors in the present case is straightforward. Absent exigent circumstances, the State's interest in ex parte seizures — with their inherent risk of erroneously depriving property — is simply not more compelling than the owner's interest in participating in a preseizure adversarial hearing. Doehr involved similarly weighted interests, and the Court in that case found the ex parte procedures violated due process. Moreover, as the majority recognizes, most federal cases involving home seizures have required an *101evidentiary hearing before a home can be seized. Majority, at 83. Doehr establishes that these federal cases properly assessed the governmental interest in light of the absence of exigent circumstances. Thus, the majority's attempt to distinguish these cases fails.
Because the ex parte seizures violated due process, I would affirm the trial courts' rulings dismissing the actions.
Utter, J., concurs with Johnson, J.
After modification, further reconsideration denied February 12, 1993.
though the focus shifts slightly when the party seeking a property deprivation is a private plaintiff rather than the government, the Mathews analysis is essentially the same in either case. When the government is seeking to deprive an owner of his or her property, the court analyzes the Mathews factors described above. When a private party is seeking to deprive an owner of property, the court asks the same questions but bifurcates its inquiry on the third Mathews factor: the court first examines the interest of the private party seeking the prejudgment remedy and second analyzes any ancillary governmental interest in "providing the procedure or forgoing the added burden of providing greater protections." Doehr, 111 S. Ct. at 2112.
This third Mathews factor also turns on whether the plaintiff had a recognized interest in the property prior to seeking the deprivation. See Doehr, 111 S. Ct. at 2115; Reardon, 947 F.2d at 1520. For example, a plaintiff with a preexisting vendor's or mechanic’s lien would he accorded a "heightened" interest. See Doehr, 111 S. Ct. at 2113 n.4, 2115; Reardon, at 1520-21. In this case, the State had no recognized interest in the properties prior to seeking the deprivation because it had not yet established that these properties were being used in violation of RCW 69.50.505. See Reardon, at 1520-21 (using a similar analysis with respect to federal liens for Comprehensive Environmental Response, Compensation, and Liability Act cleanup costs).