# Burnham v. Superior Court of California, County of Marin/Concurrence Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions White Brennan Stevens
Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR join, concurring in the judgment.
I agree with Justice SCALIA that the Due Process Clause of the Fourteenth Amendment generally permits a state court to exercise jurisdiction over a defendant if he is served with process while voluntarily present in the forum State. I do not perceive the need, however, to decide that a jurisdictional rule that " 'has been immemorially the actual law of the land,' " ante, at 619, quoting Hurtado v. California, 110 U.S. 516, 528, 4 S.Ct. 111, 117, 28 L.Ed. 232 (1884), automatically comports with due process simply by virtue of its "pedigree." Although I agree that history is an important factor in establishing whether a jurisdictional rule satisfies due process requirements, I cannot agree that it is the only factor such that all traditional rules of jurisdiction are, ipso facto, forever constitutional. Unlike Justice SCALIA, I would undertake an "independent inquiry into the . . . fairness of the prevailing in-state service rule." Ante, at 621. I therefore concur only in the judgment.
* I believe that the approach adopted by Justice SCALIA's opinion today-reliance solely on historical pedigree-is foreclosed by our decisions in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). In International Shoe, we held that a state court's assertion of personal jurisdiction does not violate the Due Process Clause if it is consistent with " 'traditional notions of fair play and substantial justice.' " 326 U.S., at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342-343, 85 L.Ed. 278 (1940). In Shaffer, we stated that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." 433 U.S., at 212, 97 S.Ct., at 2584 (emphasis added). The critical insight of Shaffer is that all rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process. No longer were we content to limit our jurisdictional analysis to pronouncements that "[t]he foundation of jurisdiction is physical power," McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 343, 61 L.Ed. 608 (1917), and that "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." Pennoyer v. Neff, 95 U.S. 714, 722, 24 L.Ed. 565 (1878). While acknowledging that "history must be considered as supporting the proposition that jurisdiction based solely on the presence of property satisfie[d] the demands of due process," we found that this factor could not be "decisive." 433 U.S., at 211-212, 97 S.Ct., at 2583. We recognized that " '[t]raditional 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." Id., at 212, 97 S.Ct., at 2584 (citations omitted). I agree with this approach and continue to believe that "the minimum-contacts analysis developed in International Shoe . . . represents a far more sensible construct for the exercise of state-court jurisdiction than the patchwork of legal and factual fictions that has been generated from the decision in Pennoyer v. Neff." Id., at 219, 97 S.Ct., at 2588 (BRENNAN, J., concurring in part and dissenting in part) (citation omitted).
While our holding in Shaffer may have been limited to quasi in rem jurisdiction, our mode of analysis was not. Indeed, that we were willing in Shaffer to examine anew the appropriateness of the quasi in rem rule-until that time dutifully accepted by American courts for at least a century-demonstrates that we did not believe that the "pedigree" of a jurisdictional practice was dispositive in deciding whether it was consistent with due process. We later characterized Shaffer as "abandon[ing] the outworn rule of Harris v. Balk, 198 U.S. 215 [25 S.Ct. 625, 49 L.Ed. 1023] (1905), that the interest of a creditor in a debt could be extinguished or otherwise affected by any State having transitory jurisdiction over the debtor." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296, 100 S.Ct. 559, 565, 62 L.Ed.2d 490 (1980); see also Rush v. Savchuk, 444 U.S. 320, 325-326, 100 S.Ct. 571, 575-576, 62 L.Ed.2d 516 (1980). If we could discard an "ancient form without substantial modern justification" in Shaffer, supra, 433 U.S., at 212, 97 S.Ct., at 2584, we can do so again. Lower courts, commentators, and the American Law In stitute all have interpreted International Shoe and Shaffer to mean that every assertion of state-court jurisdiction, even one pursuant to a "traditional" rule such as transient jurisdiction, must comport with contemporary notions of due process. Notwithstanding the nimble gymnastics of Justice SCALIA's opinion today, it is not faithful to our decision in Shaffer.
Tradition, though alone not dispositive, is of course relevant to the question whether the rule of transient jurisdiction is consistent with due process. Tradition is salient not in the sense that practices of the past are automatically reasonable today; indeed, under such a standard, the legitimacy of transient jurisdiction would be called into question because the rule's historical "pedigree" is a matter of intense debate. The rule was a stranger to the common law and was rather weakly implanted in American jurisprudence "at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted." Ante, at 611. For much of the 19th century, American courts did not uniformly recognize the concept of transient jurisdiction, and it appears that the transient rule did not receive wide currency until well after our decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878).
Rather, I find the historical background relevant because, however murky the jurisprudential origins of transient jurisdiction, the fact that American courts have announced the rule for perhaps a century (first in dicta, more recently in holdings) provides a defendant voluntarily present in a particular State today "clear notice that [he] is subject to suit" in the forum. World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 297, 100 S.Ct., at 567. Regardless of whether Justice Story's account of the rule's genesis is mythical, our common understanding now, fortified by a century of judicial practice, is that jurisdiction is often a function of geography. The transient rule is consistent with reasonable expectations and is entitled to a strong presumption that it comports with due process. "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." Shaffer, 433 U.S., at 218, 97 S.Ct., at 2587 (STEVENS, J., concurring in judgment); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985) ("Territorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there"); Glen, An Analysis of "Mere Presence" and Other Traditional Bases of Jurisdiction, 45 Brooklyn L. Rev. 607, 611-612 (1979). Thus, proposed revisions to the Restatement (Second) of Conflict of Laws § 28, p. 39 (1986), provide that "[a] state has power to exercise judicial jurisdiction over an individual who is present within its territory unless the individual's relationship to the state is so attenuated as to make the exercise of such jurisdiction unreasonable."
By visiting the forum State, a transient defendant actually "avail[s]" himself, Burger King, supra, at 476, 105 S.Ct., at 2184, of significant benefits provided by the State. His health and safety are guaranteed by the State's police, fire, and emergency medical services; he is free to travel on the State's roads and waterways; he likely enjoys the fruits of the State's economy as well. Moreover, the Privileges and Immunities Clause of Article IV prevents a state government from discriminating against a transient defendant by denying him the protections of its law or the right of access to its courts. See Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281, n. 10, 105 S.Ct. 1272, 1276, n. 10, 84 L.Ed.2d 205 (1985); Baldwin v. Fish and Game Comm'n, 436 U.S. 371, 387, 98 S.Ct. 1852, 1862, 56 L.Ed.2d 354 (1978); see also Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64-65, 108 S.Ct. 2260, 2264, 101 L.Ed.2d 56 (1988). Subject only to the doctrine of forum non conveniens, an out-of-state plaintiff may use state courts in all circumstances in which those courts would be available to state citizens. Without transient jurisdiction, an asymmetry would arise: A transient would have the full benefit of the power of the forum State's courts as a plaintiff while retaining immunity from their authority as a defendant. See Maltz, Sovereign Authority, Fairness, and Personal Jurisdiction: The Case for the Doctrine of Transient Jurisdiction, 66 Wash.U.L.Q. 671, 698-699 (1988).
The potential burdens on a transient defendant are slight. " '[M]odern transportation and communications have made it much less burdensome for a party sued to defend himself' " in a State outside his place of residence. Burger King, supra, 471 U.S., at 474, 105 S.Ct., at 2183, quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957). That the defendant has already journeyed at least once before to the forum-as evidenced by the fact that he was served with process there-is an indication that suit in the forum likely would not be prohibitively inconvenient. Finally, any burdens that do arise can be ameliorated by a variety of procedural devices. For 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. See n. 11, supra. In this case, it is undisputed that petitioner was served with process while voluntarily and knowingly in the State of California. I therefore concur in the judgment.

## Notes

* ↑ I use the term "transient jurisdiction" to refer to jurisdiction premised solely on the fact that a person is served with process while physically present in the forum State.
* ↑ Our reference in International Shoe to " 'traditional notions of fair play and substantial justice,' " 326 U.S., at 316, 66 S.Ct., at 158, meant simply that those concepts are indeed traditional ones, not that, as Justice SCALIA's opinion suggests, see ante, at 621, 622, their specific content was to be determined by tradition alone. We recognized that contemporary societal norms must play a role in our analysis. See, e.g., 326 U.S., at 317, 66 S.Ct., at 158-159 (considerations of "reasonable[ness], in the context of our federal system of government").
* ↑ Even Justice SCALIA's opinion concedes that sometimes courts may discard "traditional" rules when they no longer comport with contemporary notions of due process. For example, although, beginning with the Romans, judicial tribunals for over a millenium permitted jurisdiction to be acquired by force, see L. Wenger, Institutes of the Roman Law of Civil Procedure 46-47 (O. Fisk trans., rev. ed. 1986), by the 19th century, as Justice SCALIA acknowledges, this method had largely disappeared. See ante, at 613. I do not see why Justice SCALIA's opinion assumes that there is no further progress to be made and that the evolution of our legal system, and the society in which it operates, ended 100 years ago.
* ↑ Some lower courts have concluded that transient jurisdiction did not survive Shaffer. See Nehemiah v. Athletics Congress of U.S.A., 765 F.2d 42, 46-47 (CA3 1985); Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079, 1088-1091 (Kan.1978), rev'd on other grounds, 611 F.2d 790 (CA10 1979); Harold M. Pitman Co. v. Typecraft Software Ltd., 626 F.Supp. 305, 310-314 (ND Ill.1986); Bershaw v. Sarbacher, 40 Wash.App. 653, 657, 700 P.2d 347, 349 (1985). Others have held that transient jurisdiction is alive and well. See ante, at 615-616. But even cases falling into the latter category have engaged in the type of due process analysis that Justice SCALIA's opinion claims is unnecessary today. See, e.g., Amusement Equipment, Inc. v. Mordelt, 779 F.2d 264, 270 (CA5 1985); Hutto v. Plagens, 254 Ga. 512, 513, 330 S.E.2d 341, 342 (1985); In re Marriage of Pridemore, 146 Ill.App.3d 990, 992, 100 Ill.Dec. 640, 641-642, 497 N.E.2d 818, 819-820 (1986); Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 688-692, 273 N.W.2d 285, 287-290 (1979); Lockert v. Breedlove, 321 N.C. 66, 71-72, 361 S.E.2d 581, 585 (1987); Nutri-West v. Gibson, 764 P.2d 693, 695-696 (Wyo.1988); Cariaga v. Eighth Judicial District Court, 104 Nev. 544, 547, 762 P.2d 886, 888 (1988); El-Maksoud v. El-Maksoud, 237 N.J.Super. 483, 489, 568 A.2d 140, 143 (1989); Carr v. Carr, 180 W.Va. 12, 14, and n. 5, 375 S.E.2d 190, 192, and n. 5 (1988).
* ↑ Although commentators have disagreed over whether the rule of transient jurisdiction is consistent with modern conceptions of due process, that they have engaged in such a debate at all shows that they have rejected the methodology employed by Justice SCALIA's opinion today.
* ↑ See Restatement (Second) of Conflict of Laws § 24, Comment b, p. 29 (Draft of Proposed Revisions, April 15, 1986) ("One basic principle underlies all rules of jurisdiction. This principle is that a state does not have jurisdiction in the absence of some reasonable basis for exercising it. With respect to judicial jurisdiction, this principle was laid down by the Supreme Court of the United States in International Shoe. . . ."); id., at 30 ("Three factors are primarily responsible for existing rules of judicial jurisdiction. Present-day notions of fair play and substantial justice constitute the first factor"); id., § 28, Comment b, at 41 ("The Supreme Court held in Shaffer v. Heitner that the presence of a thing in a state gives that state jurisdiction to determine interests in the thing only in situations where the exercise of such jurisdiction would be reasonable. . . . It must likewise follow that considerations of reasonableness qualify the power of a state to exercise personal jurisdiction over an individual on the basis of his physical presence within its territory"); Restatement (Second) of Judgments § 8, Comment a, p. 64 (Tent. Draft No. 5, Mar. 10, 1978) (Shaffer establishes " 'minimum contacts' in place of presence as the principal basis for territorial jurisdiction").
* ↑ I do not propose that the "contemporary notions of due process" to be applied are no more than "each Justice's subjective assessment of what is fair and just." Ante, at 623. Rather, the inquiry is guided by our decisions beginning with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and the specific factors that we have developed to ascertain whether a jurisdictional rule comports with "traditional notions of fair play and substantial justice." See, e.g., Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987) (noting "several factors," including "the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief"). This analysis may not be "mechanical or quantitative," International Shoe, supra, 326 U.S., at 319, 66 S.Ct. at 159, but neither is it "freestanding," ante, at 626, or dependent on personal whim. Our experience with this approach demonstrates that it is well within our competence to employ.
* ↑ As Justice SCALIA's opinion acknowledges, American courts in the 19th century erected the theory of transient jurisdiction largely upon Justice Story's historical interpretation of Roman and continental sources. Justice SCALIA's opinion concedes that the rule's tradition "was not as clear as Story thought," ante, at 611; in fact, it now appears that as a historical matter Story was almost surely wrong. See Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289, 293-303 (1956); Hazard, A General Theory of State-Court Jurisdiction, 1965 S.Ct.Rev. 241, 261 ("Story's system reflected neither decided authority nor critical analysis"). Undeniably, Story's views are in considerable tension with English common law-a "tradition" closer to our own and thus, I would imagine, one that in Justice SCALIA's eyes is more deserving of our study than civil law practice. See R. Boote, An Historical Treatise of an Action or Suit at Law 97 (3d ed. 1805); G. Cheshire, Private International Law 601 (4th ed. 1952); J. Westlake, Private International Law 101-102 (1859); Note, British Precedents for Due Process Limitations on In Personam Jurisdiction, 48 Colum.L.Rev. 605, 610-611 (1948) ("The [British] cases evidence a judicial intent to limit the rules to those instances where their application is consonant with the demands of 'fair play' and 'substantial justice' ").
* ↑ In Molony v. Dows, 8 Abb.Pr. 316 (N.Y. Common Pleas 1859), for example, the court dismissed an action for a tort that had occurred in California, even though the defendant was served with process while he was in the forum State of New York. The court rejected the plaintiff's contention that it possessed "jurisdiction of all actions, local and transitory, where the defendant resides, or is personally served with process," id., at 325, with the comment that "an action cannot be maintained in this court, or in any court of this State, to recover a pecuniary satisfaction in damages for a wilful injury to the person, inflicted in another State, where, at the time of the act, both the wrongdoer and the party injured were domiciled in that State as resident citizens." Id., at 326. The court reasoned that it could not "undertake to redress every wrong that may have happened in any part of the world, [merely] because the parties, plaintiff or defendant, may afterwards happen to be within [the court's] jurisdiction." Id., at 327-328. Similarly, the Pennsylvania Supreme Court declared it "the most important principle of all municipal law of Anglo-Saxon origin, that a man shall only be liable to be called upon to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage." Coleman's Appeal, 75 Pa. 441, 458 (1874) (emphasis added). And in Gardner v. Thomas, 14 Johns. *134 (N.Y.1817), the court was faced with the question "whether this Court will take cognizance of a tort committed on the high seas, on board of a foreign vessel, both the parties being subjects or citizens of the country to which the vessel belongs," after the ship had docked in New York and suit was commenced there. The court observed that Lord Mansfield had appeared "to doubt whether an action may be maintained in England for an injury in consequence of two persons fighting in France, [even] when both are within the jurisdiction of the Court." Id., at *137. The court distinguished the instant case as an action "for an injury on the high seas"-a location, "of course, without the actual or exclusive territory of any nation." Ibid. Nevertheless, the court found that while "our Courts may take cognizance of torts committed on the high seas, on board of a foreign vessel where both parties are foreigners, . . . it must, on principles of policy, often rest in the sound discretion of the Court to afford jurisdiction or not, according to the circumstances of the case." Id., at *137-*138. In the particular case before it, the court found jurisdiction lacking. See id., at *138. See also 1 J. Wells, Jurisdiction of Courts 76 (1880) (reporting that a state court had argued that "courts have jurisdiction of actions for torts as to property, even where the parties are non-resident, and the torts were committed out of the state, if the defendant is served with process within the state," but also noting that "Clerke, J., very vigorously dissented in the case, and, I judge, with good reason").
* ↑ One distinguished legal historian has observed that "notwithstanding dogmatic generalizations later sanctioned by the Restatement [of Conflict of Laws], appellate courts hardly ever in fact held transient service sufficient as such" and that "although the transient rule has often been mouthed by the courts, it has but rarely been applied." Ehrenzweig, 65 Yale L.J., at 292, 295 (footnote omitted). Many of the cases cited in Justice SCALIA's opinion, see ante, at 612-613, involve either announcement of the rule in dictum or situations where factors other than in-state service supported the exercise of jurisdiction. See, e.g., Alley v. Caspari, 80 Me. 234, 236, 14 A. 12 (1888) (defendant found to be resident of forum); De Poret v. Gusman, 30 La.Ann., pt. 2, 930, 932 (1878) (cause of action arose in forum); Savin v. Bond, 57 Md. 228, 233 (1881) (both defendants residents of forum State); Hart v. Granger, 1 Conn. 154, 154-155 (1814)
* ↑ As the Restatement suggests, there may be cases in which a defendant's involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him. The facts of the instant case do not require us to determine the outer limits of the transient jurisdiction rule.
* ↑ That these privileges may independently be required by the Constitution does not mean that they must be ignored for purposes of determining the fairness of the transient jurisdiction rule. For example, in the context of specific jurisdiction, we consider whether a defendant "has availed himself of the privilege of conducting business" in the forum State, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985), or has " 'invok[ed] the benefits and protections of its laws,' " id., at 475, 105 S.Ct., at 2183, quoting Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1239, even though the State could not deny the defendant the right to do so. See also Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S., at 108-109, 107 S.Ct., at 1031 (plurality opinion); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781, 104 S.Ct. 1473, 1481-1482, 79 L.Ed.2d 790 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).
* ↑ For example, in the federal system, a transient defendant can avoid protracted litigation of a spurious suit through a motion to dismiss for failure to state a claim or though a motion for summary judgment. Fed. Rules Civ. Proc. 12(b)(6) and 56. He can use relatively inexpensive methods of discovery, such as oral deposition by telephone (Rule 30(b)(7)), deposition upon written questions (Rule 31), interrogatories (Rule 33), and requests for admission (Rule 36), while enjoying protection from harassment (Rule 26(c)), and possibly obtaining costs and attorney's fees for some of the work involved (Rules 37(a)(4), (b)-(d)). Moreover, a change of venue may be possible. 28 U.S.C. § 1404. In state court, many of the same procedural protections are available, as is the doctrine of forum non conveniens, under which the suit may be dismissed. See generally Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 23-25 (1982).
* ↑ Justice SCALIA's opinion maintains that, viewing transient jurisdiction as a contractual bargain, the rule is "unconscionabl[e]," ante, at 623, according to contemporary conceptions of fairness. But the opinion simultaneously insists that because of its historical "pedigree," the rule is "the very baseline of reasonableness." Ante, at 627. Thus is revealed Justice SCALIA's belief that tradition alone is completely dispositive and that no showing of unfairness can ever serve to invalidate a traditional jurisdictional practice. I disagree both with this belief and with Justice SCALIA's assessment of the fairness of the transient jurisdiction bargain.
I note, moreover, that the dual conclusions of Justice SCALIA's opinion create a singularly unattractive result. Justice SCALIA suggests that when and if a jurisdictional rule becomes substantively unfair or even "unconscionable," this Court is powerless to alter it. Instead, he is willing to rely on individual States to limit or abandon bases of jurisdiction that have become obsolete. See ante, at 627, and n. 5. This reliance is misplaced, for 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. That States are more likely to expand their jurisdiction is illustrated by the adoption by many States of long-arm statutes extending the reach of personal jurisdiction to the limits established by the Federal Constitution. See 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore's Federal Practice ¶ 4.41-1[4], p. 4-336 (2d ed. 1989); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, pp. 336-339 (1987). Out-of-staters do not vote in state elections or have a voice in state government. We should not assume, therefore, that States will be motivated by "notions of fairness" to curb jurisdictional rules like the one at issue here. The reasoning of Justice SCALIA's opinion today is strikingly oblivious to the raison d'etre of various constitutional doctrines designed to protect out-of-staters, such as the Art. IV Privileges and Immunities Clause and the Commerce Clause.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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