concurring in part and dissenting in part. I concur with the majority that the provisions for prejudgment remedy in General Statutes §§ 52-278c and 52-278d are not unconstitutionally vague on their face. I agree that a prejudgment remedy in the form of an attachment on real estate based upon probable cause after the defendant is afforded an adversary hearing1 passes constitutional muster, but only if reasonable protections are afforded to the defendant if the plaintiff is not successful on the underlying claim.
My dissent focuses on the safeguards necessary to protect the defendant from the possibility of an erroneous attachment. The defendant raises an alternate ground for sustaining the judgment of the trial court— that the prejudgment remedy statutory scheme is unconstitutional because it allows the plaintiff to obtain a prejudgment remedy without posting a bond or other *40security. I would reach that issue and find that, because the plaintiff is not required to post a bond or other security to protect the defendant from a wrongful attachment, the prejudgment statutes violate the federal due process clause.
This is an issue of great public importance. Not only does it involve the validity of the prejudgment statutes for claims of personal injury predicated on torts, but for all causes of action. The parties in this action, as well as the public and other concerned branches of government, have a right to a determination of whether the prejudgment statutes are deficient because they fail to provide for a bond or other security to protect the defendant from an erroneous deprivation of his or her property. Equally important, the majority’s failure to reach this issue leaves our trial judges with no guidance on an issue that comes before them on a daily basis.
Although the issue was squarely raised and briefed by the defendant before this court, the majority refuses to address it because the claim was not presented to the trial court. Whether a bond is required for the prejudgment remedy statutes to pass constitutional muster, however, is a question of law. Furthermore, it is clear that the issues of probable cause and the requirement of security “are intertwined and can fairly be considered facets of [the] same general issue” that was addressed by the majority. Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2116 n.7, 115 L. Ed. 2d 1 (1991) (White, J., concurring). Instead of deciding this issue, which is ripe for a determination, we turn the parties away to pursue it before the unguided trial court. This subjects them to the possibility of another appeal on this issue and the enormous litigation expense this would entail.
*41The Supreme Court of the United States in Doehr pointed out that a prejudgment remedy in the form of an attachment on real property significantly affects property interests. “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.” Id., 2113.
The prejudgment remedy statutes do not protect the defendant from the consequences of a wrongful attachment even if there is an adversary proceeding. For example, if an insolvent plaintiff secures a prejudgment remedy on a claim, but subsequently fails to prove either liability or damages to the full extent of the prejudgment remedy, the defendant has no practical recourse for the recovery of damages resulting from the erroneous deprivation of his property. The harm caused to the defendant could be significant in view of the long lapse of time that can occur between the granting of the prejudgment remedy and the final resolution of the litigation.
In Doehr, although the majority refused to reach the issue, four justices (Justices White, Marshall, Stevens and O’Connor) opined that our prejudgment remedy statutes were unconstitutional because the statutory scheme did not provide for a bond or other security. Justice White wrote as follows: “Without a bond, at the time of attachment, the danger that these property rights may be wrongfully deprived remains unacceptably high even with such safeguards as a hearing or exigency requirement. The need for a bond is especially apparent where extraordinary circumstances justify an attachment with no more than the plaintiff’s ex parte assertion of a claim. We have already discussed how due process tolerates, and the States generally permit, *42the otherwise impermissible chance of erroneously depriving the defendant in such situations in light of the heightened interest of the plaintiff. Until a postattachment hearing, however, a defendant has no protection against damages sustained where no extraordinary circumstance in fact existed or the plaintiff’s likelihood of recovery was nil. Such protection is what a bond can supply. Both the Court and its individual members have repeatedly found the requirement of a bond to play an essential role in reducing what would have been too great a degree of risk in precisely this type of circumstance.
“But the need for a bond does not end here. A defendant’s property rights remain at undue risk even when there has been an adversarial hearing to determine the plaintiffs likelihood of recovery. At best, a court’s initial assessment of each party’s case cannot produce more than an educated prediction as to who will win. This is especially true when, as here, the nature of the claim makes any accurate prediction elusive. ... In consequence, even a full hearing under a proper probable-cause standard would not prevent many defendants from having title to their homes impaired during the pendency of suits that never result in the contingency that ultimately justifies such impairment, namely, an award to the plaintiff. Attachment measures currently on the books reflect this concern. All but a handful of states require a plaintiff’s bond despite also affording a hearing either before, or (for the vast majority, only under extraordinary circumstances) soon after, an attachment takes place. Bonds have been a similarly common feature of other prejudgment remedy procedures that we have considered, whether or not these procedures also included a hearing.” (Citations omitted; emphasis added.) Connecticut v. Doehr, supra, 2117.2
*43Accordingly, I would find the prejudgment remedy statutes, §§ 52-278a through 52-278n, insofar as they allow a plaintiff to attach a defendant’s property without posting a bond or other security, unconstitutional3 as violating the due process clause of the United States constitution.4
The majority opinion points out that, under the federal constitution, the "validity of a probable cause standard has regularly been upheld in the criminal law context.” Of course, it never ceases to amaze me that due process requires an adversary hearing to determine probable cause for a deprivation of a person’s property interest (which does not even affect this person’s right to possession in the ease of a lien on real property); Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2112-16, 115 L. Ed. 2d 1 (1991); but there is no requirement for an adversary hearing when the state seeks to deprive a person of liberty based upon probable cause. Gerstein v. Pugh, 420 U.S. 103, 120, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); R. Berdon, “Liberty and Property under the Procedural Due Process Clause: The Requirement of an Adversary Hearing to Determine Probable Cause,” 53 Conn. B.J. 31 (1979).
In answer to the argument that General Statutes § 52-568 (a) (1), which provides for the remedy of double damages for suits that are commenced *43without probable cause, protects a defendant, Justice White points out the following: “This remedy, however, fails to make up for the lack of a bond. As an initial matter, the meaning of ‘probable cause’ in this provision is no more clear here than it was in the attachment provision itself. Should the term mean the plaintiff’s good faith or the facial adequacy of the complaint, the remedy is clearly insufficient. A defendant who was deprived where there was little or no likelihood that the plaintiff would obtain a judgment could nonetheless recover only by proving some type of fraud or malice or by showing that the plaintiff had failed to state a claim. Problems persist even if the plaintiffs ultimate failure permits recovery. At best a defendant must await a decision on the merits of the plaintiff’s complaint, even assuming that a § 52-568 (a) (1) action may be brought as a counterclaim. Hydro Air of Connecticut, Inc. v. Versa Technologies, Inc., 99 F.R.D. 111, 113 (Conn. 1983). Settlement, under Connecticut law, precludes seeking the damages remedy, a fact that encourages the use of attachments as a tactical device to pressure an opponent to capitulate. Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983). An attorney’s advice that there is probable cause to commence an action constitutes a complete defense, even if the advice was unsound or erroneous. Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978). Finally, there is no guarantee that the original plaintiff will have adequate assets to satisfy an award that the defendant may win.
“Nor is there any appreciable interest against a bond requirement. [General Statutes §] 52-278e (a) (1) does not require a plaintiff to show exigent circumstances nor any pre-existing interest in the property facing attachment. A party must show more than the mere existence of a claim before subjecting an opponent to prejudgment proceedings that carry a significant risk of erroneous deprivation.” Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2117-18, 115 L. Ed. 2d 1 (1991).
Indeed, as the defendant points out in his brief, a party whose property is attached may only obtain a release if he or she posts a bond with sufficient security. Likewise, under General Statutes § 52-278d (c), the defendant may move for a stay of a prejudgment remedy, but it will only be ordered “if the defendant posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damage which may accrue as a result of such stay.” The statutory scheme, which protects the creditor but fails to furnish any protection for the debtor, underscores its unconstitutionality.
The defendant has failed to raise an independent claim under the due process clause of article first, § 10, of the Connecticut constitution.