Burnham v. Superior Court of California

At common law, recognized by the Supreme Court in Pennoyer v. Neff (1877), a civil action was commenced by serving process on the defendant within the forum jurisdiction. Service on a defendant within the forum state created jurisdiction over the defendant regardless of whether the defendant was a resident of the state or was merely visiting it, and regardless of whether the subject-matter of the lawsuit had anything to do with the defendant's activities in the state.

Subsequently, in International Shoe Co. v. Washington (1946) and Shaffer v. Heitner (1977), the Supreme Court held that the Due Process Clause requires that a state's exercise of personal jurisdiction over a defendant must comport with "traditional notions of fair play and substantial justice," at least when the defendant was not served with process in the forum state.

The issue in Burnham was whether, in light of International Shoe and Shaffer, service on a non-resident visiting a state remained a constitutionally-sufficient basis for the exercise of personal jurisdiction over the non-resident.

Justice Scalia delivered the lead opinion in the case, joined by Chief Justice Rehnquist, Justice Kennedy, and in part by Justice White. Justice Scalia began by defining the question presented as "whether the Due Process Clause of the Fourteenth Amendment denies California courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State."

Justice Scalia took a historical approach to answering this question. In Justice Scalia's view, buttressed by citation of numerous cases, "[a]mong the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State." At common law, service of process on the defendant within the forum state was a prerequisite to exercising jurisdiction over the defendant in that state. In cases such as International Shoe Co. v. Washington and Shaffer v. Heitner, the Court had accepted that a non-resident served outside a state could still be subject to jurisdiction, but only where the defendant had "certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" However, these cases did not support the converse argument that the longstanding practice of obtaining jurisdiction over a defendant by serving process within the forum might now violate due process. "[A] a doctrine of personal jurisdiction that dates back to the adoption of the Fourteenth Amendment and is still generally observed unquestionably meets th[e] standard" of due process.

Justice Brennan, in an opinion joined by Justices Marshall, Blackmun and O'Connor, concurred that California could constitutionally exercise jurisdiction over Dennis Burnham because he had been served with process while visiting the state. However, Justice Brennan rejected Justice Scalia's contention that the long history of allowing transient jurisdiction was sufficient to resolve the case. According to Justice Brennan, the Court's decision in Shaffer v. Heitner required that all methods of obtaining jurisdiction must be evaluated according to contemporary notions of due process.

Justice Brennan acknowledged that while not dispositive, the historical pedigree of transient jurisdiction was relevant in evaluating its constitutionality, because it provided potential defendants with notice that visiting a state could lead to their being subject to jurisdiction on a lawsuit in that state. While voluntarily present in a state, an individual avails himself of benefits provided by that state. Moreover, developments in modern communications and transportation make it much less burdensome than previously for a non-resident to defend himself or herself in another jurisdiction. Procedural devices such as the doctrine of forum non conveniens are available in a case where litigating in the forum would be genuinely burdensome. Justice Brennan concluded that "[f]or these reasons, as a rule the exercise of personal jurisdiction over a defendant based on his voluntary presence in the forum will satisfy the requirements of due process."

In a short opinion concurring in part and concurring in the judgment, Justice White stated that "[t]he rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum state, without more, has been and is so widely accepted throughout this country that I could not possibly strike it down, either on its face or as applied in this case, on the ground that it denies due process of law guaranteed by the Fourteenth Amendment." In Justice White's view, while the Supreme Court has authority to strike down even traditional accepted procedures that do not provide due process, there was no basis for doing so in this case. There was no showing that allowing service of process within a state to provide a basis for jurisdiction "is so arbitrary and lacking in common sense in so many instances that it should be held violative of Due Process in every case." To avoid endless litigation, Justice White concluded that challenges to the fairness of jurisdiction based on service in individual cases need not be entertained, "[a]t least ... where presence in the forum state is intentional, which would almost always be the fact."

In a separate opinion concurring in the judgment, Justice Stevens stated that he declined to join either Justice Scalia's or Justice Brennan's opinion because he was "concerned by [their] unnecessarily broad reach." Justice Stevens stated that the historical evidence cited by Justice Scalia, the considerations of fairness discussed by Justice Brennan, and the common sense of Justice White's concurrence, "all combine to demonstrate that this is, indeed, a very easy case." In a footnote, Justice Stevens laconically mused that "[p]erhaps the adage about hard cases making bad law should be revised to cover easy cases."