Splintered Reasoning in Burnham

Splintered Reasoning in Burnham

Burnham produced a unanimous judgment and no majority opinion. Justice Scalia announced the judgment of the Court. The Chief Justice and Justice Kennedy joined his opinion in full, and Justice White joined Parts I, II-A, II-B, and II-C, which gave those parts four votes. Justice Brennan wrote a concurrence in the judgment for himself and Justices Marshall, Blackmun, and O’Connor, a second bloc of four. Justice White also filed a separate opinion concurring in part and in the judgment, and Justice Stevens concurred in the judgment alone.¹ All nine Justices thus voted to affirm California’s jurisdiction over Dennis Burnham, yet no single line of reasoning drew five votes.

The blocs split over how to read Shaffer’s statement that every assertion of state-court jurisdiction must satisfy the International Shoe standard. Justice Brennan and his three colleagues thought Shaffer meant what it said: “all” assertions of jurisdiction, transient presence included, must be analyzed under International Shoe. They found that standard satisfied because Burnham had contacts with California, including visits to his children and use of the state’s roads.² Justice Scalia’s opinion went the other way. It treated in-state service as so well settled that the rule’s pedigree validates it, and it made no independent inquiry into the rule’s fairness.³

State Burnham’s holding at the level the Justices share. A state court may exercise personal jurisdiction over a defendant who is personally served while physically present in the forum, even if the visit is brief and the claim is unrelated to it.⁴ Burnham’s presence was also voluntary, and the concurrences stress that fact. Avoid saying that the Court “relied on history” or “relied on fairness,” because neither rationale commanded a majority. The narrow common ground also leaves open every set of facts that falls outside it, and an essay on such facts should argue from both rationales: tradition asks whether the practice belongs to the American jurisdictional tradition, and fairness asks whether jurisdiction over this defendant is fair. The sections below take up the tradition rationale first, then the fairness rationale, then the concurrences of Justices White and Stevens.

Scalia's Tradition Rationale

Justice Scalia starts from a premise about what due process asks when a state court claims power over a person. The Court, he writes, has long relied on the principles that American courts traditionally followed in marking out the territorial limits of each State’s authority, a criterion first announced in Pennoyer.⁵ Because International Shoe’s test asks about “traditional notions of fair play and substantial justice,” the historical record measures a jurisdictional rule, and a rule’s “validation is its pedigree.”⁶

That premise recasts the question. Petitioner argued that, without “continuous and systematic” contacts, a nonresident defendant can be subjected to judgment only on matters that arise out of or relate to his contacts with the forum. The plurality replied that this argument rests on a thorough misunderstanding of the Court’s cases.⁷ On the plurality’s view, the real question is whether a rule settled when the Fourteenth Amendment was adopted still satisfies a test that looks to tradition.

The plurality builds that tradition in layers. Justice Story’s treatise supplies the foundation: personal actions are transitory and may be brought wherever the defendant is found, because every nation may rightfully exercise jurisdiction over all persons within its domains.⁸ Recent scholarship suggests that English tradition was less clear than Story thought, but the plurality concludes that, accurate or not, American courts shared his understanding in 1868, when the Fourteenth Amendment was adopted.⁹ Its representative example is a decision of the Supreme Court of Georgia, Murphy v. J. S. Winter & Co., an action on a debt with no apparent relation to the defendant’s temporary presence in the state.¹⁰

The negative evidence is even more striking. As far as the Court could determine, not one American case from the period, and none until 1978, held or even suggested that in-state personal service on an individual was insufficient to confer jurisdiction, and commentators were seemingly unanimous on the rule.¹¹

The rule’s exceptions point the same way. Most States exempted from service of process individuals brought into the forum by force or fraud, and individuals present as a party or witness in unrelated judicial proceedings. Those exemptions, the plurality observed, rested on the premise that service of process conferred jurisdiction, because nobody needs protection from service that has no legal effect.¹² A later section takes up how each exception operates.

The practice is also current. As far as the Court was aware, all the States and the federal government still follow it, once one disregards the few opinions since 1978 that have said, on grounds like petitioner’s, that the Court’s due process decisions make the practice unconstitutional, opinions the plurality called erroneous.¹³

Petitioner’s answer rested on International Shoe, and the plurality replied by explaining what that decision solved. International Shoe cast aside the fictions that courts had used to stretch Pennoyer’s territorial rule and made explicit the underlying basis of those decisions: due process does not necessarily require the States to adhere to Pennoyer’s unbending territorial limits, and jurisdiction over a nonconsenting defendant who is not present in the forum depends on the quality and nature of his activity in relation to the forum.¹⁴ The minimum-contacts requirement applies, by its own terms, when the defendant is “not present within the territory of the forum.”¹⁵ Nothing in International Shoe or its progeny, the plurality concluded, supports the “very different proposition” that presence, though unnecessary to validate novel assertions of jurisdiction, no longer suffices to establish it. That proposition is “unfaithful to both elementary logic and the foundations of our due process jurisprudence.”¹⁶ On this view Pennoyer remains the baseline for defendants found in the state, and International Shoe fills the gap for those who cannot be found there.¹⁷

The plurality draws the line between novel and traditional procedures from Hurtado v. California, decided more than a century earlier: as the plurality reads it, a process that can show the sanction of settled usage is due process, though it does not follow that nothing else can be.¹⁸ A rule with a pedigree is thus validated by it, while a novel rule has no such validation and must be analyzed to see whether traditional notions of fair play and substantial justice have been offended.¹⁹ The International Shoe standard, moreover, was developed by analogy to physical presence, and the plurality thought it perverse to turn the standard against the touchstone from which it came.²⁰

Petitioner also relied on Shaffer, and the plurality read it closely. Petitioner had wrenched from context the statement that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” That sentence follows two others condemning the fiction that jurisdiction over property is anything but jurisdiction over its owner, and it opens with the words “We therefore conclude.”²¹ Shaffer concerned absent defendants: it holds that jurisdiction based on a “property ownership” contact, which by definition comes without personal in-state service, must satisfy International Shoe’s litigation-relatedness requirement. The logic of that holding places all suits against absent nonresidents on one constitutional footing, whatever Latin label attaches to the basis of contact, but it does not require that a physically present defendant be treated like an absent one. The tradition had always treated the two classes differently, and the plurality found it unreasonable to read Shaffer as casually obliterating that distinction.²²

What separates the plurality from Shaffer is method, and the opinion says so. Its holding does not contradict Shaffer, but its basic approach to the due process question differs: it conducted no independent inquiry into the desirability or fairness of the in-state service rule and left that judgment to the legislatures, which are free to amend the rule.²³ Shaffer had conducted such an inquiry. The plurality’s test has two conditions, and each does work. Shaffer’s concern about “the perpetuation of ancient forms” may hold when only a very small minority of States still follows the form. Where a principle is both firmly approved by tradition and still favored, though, the plurality could not imagine what standard would support the judgment that it is “no longer justified.”²⁴ Shaffer itself may have involved such a minority practice, since Delaware alone treated the place of incorporation as the situs of corporate stock when both owner and custodian were elsewhere.²⁵ A later opinion draws the same lesson: because jurisdiction is in the first instance a question of authority rather than fairness, the principal opinion in Burnham made no independent inquiry into the fairness of the in-state service rule.²⁶

One caution about votes follows from this. Justice White joined only Parts I through II-C, so the parts of Justice Scalia’s opinion that he did not join, including the direct reply to Justice Brennan, carry three votes.²⁷ When you attribute a passage to “the plurality,” check whether it comes from a part that drew four.

The plurality answered Justice Brennan with the same method. His “contemporary notions of due process,” it said, measure state-court jurisdiction against traditional doctrines, including current state-court practice, and also against each Justice’s subjective assessment of what is fair and just. No personal jurisdiction case supports that standard, which would break outright with the test of “traditional notions of fair play and substantial justice” and would have to rewrite it as “our notions.”²⁸ Change, the plurality added, belongs to the States and the people. Nothing in the decision prevents a State from limiting or abandoning in-state service, and if an overwhelming majority did so, the traditional notions of fairness that the Court applies might change. But the States have overwhelmingly declined, and the question is whether the Court, armed with only individual Justices’ perceptions of fairness, can compel them to change because due process requires it.²⁹

On Dennis Burnham’s facts the sequence stops at the third step. California served him during a voluntary visit, in-state service was settled in 1868, and the States still follow it. The plurality therefore required no showing that his visit related to the divorce suit or that he had other contacts with California.³¹ A case that begins at the fourth step looks different.

The statute answers the first question in a personal jurisdiction problem, whether state law authorizes the court to reach the defendant. The second question, whether due process permits it, comes out the other way.³² Donnor is absent from Ohio, and the plaintiff’s residence is not a traditional basis of the kind the plurality validated by pedigree. International Shoe therefore governs, Donnor has no contacts with Ohio, and the motion should be granted. Had Percy instead found Donnor in Ohio on a visit and served him there, in-state service alone would support jurisdiction over the same accident, and the statute would be irrelevant. The fact that moves the answer is the rule’s pedigree: Dennis’s basis is old and still followed, and Percy’s is neither.

Brennan's Fairness Rationale

Justice Brennan reached the plurality’s result by a different road. He agreed that, as a rule, jurisdiction over a defendant served while voluntarily present in the forum satisfies due process, but he refused to treat a jurisdictional rule as constitutional merely because of its pedigree. He would make an “independent inquiry into the . . . fairness of the prevailing in-state service rule,” and he therefore concurred only in the judgment.³⁵ His opinion answers a series of questions that the plurality’s historical argument leaves open.

The first question is whether an old rule must still satisfy modern due process, and Brennan read Shaffer to say that it must. Shaffer had warned that traditional notions of fair play and substantial justice “can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.”³⁶ If the Court could discard an ancient form without substantial modern justification in Shaffer, Brennan reasoned, it could do so again. Lower courts, commentators, and the American Law Institute had all read International Shoe and Shaffer to require that every assertion of state-court jurisdiction, even one under a traditional rule such as transient jurisdiction, comport with contemporary notions of due process. Brennan called the plurality’s contrary reading, for all its “nimble gymnastics,” unfaithful to Shaffer.³⁷

The second question is what work tradition does. It is relevant, Brennan said, but not dispositive: practices of the past are not automatically reasonable today, and a pedigree-only standard would call transient jurisdiction itself into question, because the rule’s historical pedigree is a matter of intense debate.³⁸ The plurality conceded that the tradition “was not as clear as Story thought,” and Brennan added that as a historical matter Story was almost surely wrong and that the transient rule as we now conceive it had no clear counterpart at common law.³⁹ A rule with so contested a history needs another footing, and Brennan found it in reasonable expectations: “The transient rule is consistent with reasonable expectations and is entitled to a strong presumption that it comports with due process.”⁴⁰

The third question is what a visitor can foresee. Brennan quoted Shaffer for the answer: “If I visit another State, . . . I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks.”⁴¹

The fourth question is what the visitor receives. The Privileges and Immunities Clause of Article IV bars a state from discriminating against a transient defendant by denying him the protection of its law or access to its courts.⁴² The argument is reciprocal: a person who draws on the forum’s legal system has little ground to complain at being required to answer in it.

The fifth question is what defending costs. The fact that the defendant was served in the forum shows that he has already journeyed there at least once, which indicates that suit there likely would not be prohibitively inconvenient, and a variety of procedural devices can ameliorate whatever burdens remain.⁴³ From these answers Brennan concluded that, as a rule, personal jurisdiction based on voluntary presence in the forum satisfies due process. The qualifier “as a rule” is deliberate. He acknowledged that a defendant’s involuntary or unknowing presence in a state might not support jurisdiction, and he left the outer limits of the transient rule undecided.⁴⁴

On Dennis Burnham’s facts every answer holds. It was undisputed that he was served “while voluntarily and knowingly in the State of California.”⁴⁵ He had come to the state on business and to see his children, so the notice, reciprocity, and burden rationales all applied, and Brennan concurred in the judgment.

The plurality tested the rationale by stripping away its supports. Suppose a defendant in Burnham’s situation enjoys not three days of California’s “benefits” but fifteen minutes’ worth. Suppose he came to California not on business but only to visit his children, so that he did not enjoy “the fruits of the State’s economy.”⁴⁶ Each variation would raise a question for the court to decide. Brennan replied that his inquiry is not each Justice’s personal sense of what is fair and just. It is guided by the decisions beginning with International Shoe and by the specific factors the Court has developed to decide whether a jurisdictional rule comports with traditional notions of fair play and substantial justice.⁴⁷

The plurality made three objections. The first is that the benefits argument proves too much: the assertions about what Burnham received from California, the plurality said, “justify the exercise of jurisdiction over everyone, whether or not he ever comes to California.”⁴⁸

The second objection targets the one factor the plurality found both distinctive to in-state service and fully persuasive: a defendant voluntarily present in a state reasonably expects to be sued there. Calling that expectation a fairness factor disguises it, the plurality said, because “in reality, of course, it is just tradition masquerading as ‘fairness.’”⁴⁹ The continuing tradition, which anyone entering California should have known about, is what makes the expectation reasonable. Brennan’s long journey is therefore circular: tradition is not enough by itself, yet fairness exists because there is a continuing tradition. The tradition renders jurisdiction fair only in the limited sense that a defendant who voluntarily entered the state has no one but himself to blame.⁵⁰

The third objection is that a fairness standard cannot function as a rule. Despite working the word “rule” into his formulation, the plurality said, Brennan established only a “totality of the circumstances” test, which guarantees what traditional territorial rules were designed to avoid: uncertainty and litigation over the preliminary issue of the forum’s competence. Those costs may have to be accepted at the margins when the Court evaluates nontraditional forms of jurisdiction that States have newly adopted, but the plurality saw no reason to inject them into the core of American practice, where physical presence has long been the baseline of reasonableness.⁵¹

Brennan had his own answer to the suggestion that the States can correct an unfair rule. States have little incentive to limit rules such as transient jurisdiction that make it easier for their own citizens to sue out-of-state defendants, and the adoption by many States of long-arm statutes reaching to the limits of the Federal Constitution shows that States are more likely to expand their jurisdiction than to narrow it.⁵² The plurality, for its part, said that the question is whether changes are adopted as progressive by the American people or decreed as progressive by the Justices.⁵³

Both blocs uphold jurisdiction over a voluntary visitor served in the state, so the disagreement shows at the margins and in method. Because neither opinion drew five votes, Brennan’s approach supplies an argument and not a controlling test. A defendant served on a very short, sympathetic, or unusual visit can invoke his emphasis on fairness under all the circumstances, and the plaintiff can answer with the plurality’s point that a rule keyed to pedigree leaves no room for that inquiry. Defendants have reason to press the point, since a rule that rests on service alone invites tactical “gotcha”: commentary describes the service on Dennis during his visit with his children as a display of “tag” jurisdiction.⁵⁴

White and Stevens Concurrences

Justice White joined Parts I, II-A, II-B, and II-C of Justice Scalia’s opinion and concurred in the judgment of affirmance.⁵⁷ Those parts include the historical case for in-state service, so his vote counts toward the plurality’s history but not toward the parts he left unjoined. He then explained how far his agreement goes. The rule allowing jurisdiction over a nonresident by personal service in the forum state, without more, is so widely accepted throughout the country that he could not strike it down, either on its face or as applied in this case, on the ground that it denies due process.⁵⁸

White’s reasoning has two parts. The Court keeps its authority under the Fourteenth Amendment to examine even traditionally accepted procedures and declare them invalid, so a challenge to the rule as such remains possible. But until someone shows that the rule itself fails, a showing he called “difficult indeed,” claims in individual cases that the rule operates unfairly against the particular nonresident need not be entertained.⁵⁹ His position thus sits between the plurality, which ends the inquiry once the pedigree is established, and Justice Brennan, who examines fairness under all the circumstances.

White gave a practical reason for refusing the individualized inquiry: without that limit, “there would be endless, fact-specific litigation in the trial and appellate courts, including this one.”⁶⁰ The logic is straightforward. A territorial rule is valuable because the forum’s power turns on a fact that is cheap to establish, namely where the papers were delivered. If every served defendant could argue that the visit was too short, the claim too remote, or the forum too inconvenient, each tag case would need a hearing on the court’s competence before the merits began. The plurality voiced the same concern about a totality-of-the-circumstances test.⁶¹

White also tied his refusal to a qualifier: individual claims need not be entertained “at least” where presence in the forum is intentional, “which would almost always be the fact.”⁶² The qualifier carries weight, because a defendant who chose to enter could have avoided the forum’s courts by staying out. The words “at least” mark what White left open, which is the defendant whose presence was not intentional.

Dennis Burnham’s facts satisfy every condition. He went to California to see his children and was served there, and Justice Brennan’s opinion records that it was undisputed he was served while voluntarily and knowingly in the state.⁶³ The rule is widely accepted, no one showed that it fails in general, and the presence was intentional, so White had no occasion to hear a complaint that the rule treated Dennis unfairly. Exam facts often remove that last condition.

Neither concurrence resolves this case. White refused to hear individual claims “at least” where presence is intentional, and he left the rest open. Justice Brennan’s conclusion that jurisdiction generally satisfies due process rests on voluntary presence, and his footnote warns that a defendant’s involuntary or unknowing presence in a state may not support jurisdiction, a question he left undecided because Burnham’s facts did not require it.⁶⁴ The passenger’s argument is that neither rationale reaches a defendant who chose nothing. The plaintiff cannot find support for the contrary in either concurrence, and the next sections show where the search leads. The only fact separating the passenger from Dennis is whether the presence was chosen, and both concurrences treat that fact as central.

Justice Stevens concurred in the judgment in a short separate opinion and joined neither of the others.⁶⁵ He found it sufficient to note that the historical evidence and consensus identified by Justice Scalia, the considerations of fairness identified by Justice Brennan, and the common sense displayed by Justice White all combine to show that this is “a very easy case.”⁶⁶ That is an opinion of restraint. When history, fairness, and common sense all lead to the same result, nothing in deciding the case requires choosing among them, and the choice waits for a case in which they diverge.

Read together, the two concurrences add a fact to the holding and withhold a theory from it. White joined the plurality’s historical sections but not its remaining parts, and Stevens relied on history and fairness together, so neither concurrence turns either rationale into a majority theory. What links White’s “intentional” presence to Brennan’s “voluntary and knowing” presence is that the defendant chose to be in the forum when served. That fact supports the holding and sets up the limits on tag jurisdiction taken up in the next section.