McClory v. Merkert

420 N.E.2d 349, 383 Mass. 883, 1981 Mass. LEXIS 1225

Opinion

In connection with this action affecting title to real property, the plaintiff filed a memorandum of lis pendens in the Norfolk registry of deeds. The trial judge in the Superior Court Department granted the defendants’ motion to dissolve the lis pendens on the ground that the statutes governing lis pendens, G. L. c. 184, § 15, and G. L. c. 185, § 16,¹ authorized the deprivation of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution and arts. 10, 11, and 12 of the Declaration of Rights of the Massachusetts Constitution. The plaintiff sought and was granted interlocutory review of the judge’s ruling by the Appeals Court pursuant to G. L. c. 231, § 118. We transferred the case to this court on our own motion.

Paula M. Golden for the plaintiff. Joseph J. Sweeney for the defendants.

In Debral Realty, Inc. v. DiChiara, ante 559 (1981), we upheld G. L. c. 184, § 15, against an attack under the Federal Constitution. The same reasoning leads us to conclude that the challenged statutes do not offend the State constitutional due process provisions.² The order allowing the defendants’ motion to dissolve the lis pendens is reversed.

So ordered.

Footnotes

1

General Laws c. 185, § 16, governs lis pendens relating to registered land and does not differ in substance from G. L. c. 184, § 15.

2

We recognize that in some situations the State Constitution may afford more protection against deprivation of property without due process than that guaranteed by the Fourteenth Amendment. See, e.g., Lowell Gas Co. v. Department of Pub. Utils., 324 Mass. 80, 87, cert, denied, 338 U.S. 825 (1949). Cf. Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U.L. Rev. 887, 909-920 (1980) (comparing State and Federal due process of law limitations on regulation of economic activities).