Burnham v. Superior Court

495 U.S. 604 (1990)

Yeazell, pp. 150-157


Facts: The Burnhams were getting divorced.Mrs. Burnham sued for divorce in California.While Mr. Burnham, the appellant, was in California briefly he was served process.


Procedural Posture: Burnham made a special appearance in California to try to quash service of process on the grounds that California did not have personal jurisdiction over him due to insufficient contacts.The Superior Court denied his motion, and the California Court of Appeal agreed.Burnham appealed to the United States Supreme Court.


Issue: If a defendant is served process within a stateís borders, does due process require a connection between the lawsuit and the defendantís contacts within the state?


Rule: NO MAJORITY RULE.Scaliaís bunch says that it is sufficient that the defendant be physically present for California to have personal jurisdiction.Brennanís bunch agrees that California has jurisdiction, but in deciding this you must consider minimum contacts and fair play factors.


Analysis: Scalia says that most of the big cases have asked the Supreme Court to find out whether a state has jurisdiction over an absent defendant.Now they have to figure this out for an actually physically present defendant.Scalia says that courts basically have always had jurisdiction over physically present defendants and ought to continue to have such jurisdiction.Scalia also rejects the argument that Shaffer says that all questions of personal jurisdiction should be evaluated according to Shoe.Scalia points to the language in Shaffer and says it only applied to absent defendants.


Brennan says that just because something has been the law for a long time doesnít mean itís just or right.Brennan interprets the ruling in Shaffer to mean that really all personal jurisdiction rules must be evaluated according to minimum contacts and fair play, even ďancientĒ rules.


The fact that physical presence has been sufficient for personal jurisdiction for so long, Brennan argues, means that someone who goes to California has ďclear noticeĒ that they can be served process there.


Brennan further says that by being in a state at all, you get some benefit from the protection of its laws, and itís clear that it was convenient for you to travel there at least once.Thus, he argues, itís only fair that you be subject to its jurisdiction.


Scalia counters by saying that the benefits which Brennan mentions are too cheap, or else could be plausibly cheap in such a way that you couldnít draw a clear line.Scalia finally says that if people want physical presence not to constitute jurisdiction anymore, the legislature should pass a law, and the judiciary shouldnít meddle.


Stevens basically suggests that he wouldnít have granted cert because it is such an easy case.


Conclusion: The Court found that California had personal jurisdiction over Burnham.


Notes and Problems



a.      The Court disagrees about why physical presence gives the state where you are personal jurisdiction.Scaliaís bunch says itís because of precedent and tradition that the Court shouldnít change, while Brennanís bunch says itís because such jurisdiction is fair because of adequate notice and purposeful availment.

b.     I think they all have reasonable arguments for why California should have jurisdiction.I donít think itís wrong for them to agree on the result of this case, but they might disagree on the result of a different case.I think the result of the case is easy; I donít think the Court took the case to produce an earth-shattering result.They wanted to talk about personal jurisdiction.I suppose Brennanís decision would be the easiest to turn into a dissent if he actually agreed with Scaliaís opinion that there was a lack of minimum contacts.

c.     If itís a marital property case, then the result doesnít even appear that important.

d.     Scalia would say that it may not be a good rule, but itís the law of the land and if it should be changed then Congress should do so.Brennan would say that itís not a good rule in general, and in some cases it would fail the minimum contacts or fair play test or both tests.


a.      Scalia would say yes, and along with Rehnquist and Kennedy would make three votes.Brennan and friends would say that the executive had notice and had the benefit, however brief, of Washingtonís laws.That would make a total of seven votes, and I think there would be jurisdiction.I donít know how White or Stevens would vote.

b.     I canít justify a world where the owner is subject to personal jurisdiction but the company is not except by orthodox application of the principles cited by either Scalia or Brennan: absolute power of states within their own borders on the one hand, or on the other, the principle that you need to do very little while physically present in a state in order for it to be fair to be subject to jurisdiction there.I think maybe ďthere oughta be a law!Ē

3.     Maybe if Burnham had avoided traveling to California he could have avoided being served process.

a.      I believe New Jersey could at least subject Mrs. Burnham to specific personal jurisdiction because the claim would be so closely related to her contacts with the state.

b.     This seems reasonable to me.This is the sort of legislative solution that Scalia would advocate.


a.      I think the difference in the first case (Siemer) is that youíre not really going for personal jurisdiction over the actual, factual person, but rather over the corporation they represent.The corporation itself will never be physically present in your state like a person can be.

b.     I think the unfairness here is built into the legal fiction of the corporation as a person.A corporation can never physically move like a person can.Thus, unless youíre in the state of incorporation or the state where the corporate headquarters is located, the corporation will never be physically present in your state, no matter what.In other words, it will always be an absent defendant.Maybe we should consider whether the legal fiction of the corporation as a person is fair and useful or whether we ought to treat corporations differently.


a.      Brennan would say thereís no way there is jurisdiction because there was no purposeful availment.Scalia might say that the state should not lose its sovereignty due to the intervention of a third party that forces the defendant into the state.I think Scalia would say that there should be no jurisdiction only if the state itself, by force or fraud, caused a person to come within its borders.

b.     Perhaps I misunderstand him, but I think Scalia would probably say that if the state wants to allow defendants to make special ďnon-appearancesĒ to see sick children and the like, they should create this privilege by statute.Brennan would say that even if the person came to California based on fraud, they would still be on notice and they would still avail themselves of the protections of California law.Iím not quite sure on what basis, given this ruling, the Court could find no jurisdiction.

c.     There are certainly good policy reasons for this, but again, I donít see how they would fit into this ruling.

d.     This is a classic fairness versus efficiency concern.Working out complex rules to make each case fair would increase the overhead involved in litigation and might only prevent a few abuses.In order to weigh these factors, it would be useful to know just how frequently these abuses occur or would occur under each set of rules.


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