Burnham
v. Superior Court
495
Yeazell,
pp. 150-157
Facts: The Burnhams were getting divorced. Mrs. Burnham sued for divorce in
Procedural
Posture: Burnham
made a special appearance in
Issue: If a defendant is served
process within a state’s borders, does due process require a connection between
the lawsuit and the defendant’s contacts within the state?
Rule: NO MAJORITY RULE. Scalia’s bunch says that it is sufficient
that the defendant be physically present for
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 doesn’t mean
it’s 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 “ancient” 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 “clear
notice” 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 it’s clear that it was convenient for you to travel
there at least once. Thus, he argues, it’s
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 couldn’t 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 shouldn’t meddle.
Stevens
basically suggests that he wouldn’t have granted cert because it is such an
easy case.
Conclusion: The Court found that
Notes
and Problems
1.
a. The Court
disagrees about why physical presence gives the state where you are personal
jurisdiction. Scalia’s bunch says it’s
because of precedent and tradition that the Court shouldn’t change, while
Brennan’s bunch says it’s because such jurisdiction is fair because of adequate
notice and purposeful availment.
b. I think they
all have reasonable arguments for why
c. If it’s a
marital property case, then the result doesn’t even appear that important.
d. Scalia would
say that it may not be a good rule, but it’s the law of the land and if it
should be changed then Congress should do so.
Brennan would say that it’s not a good rule in general, and in some cases
it would fail the minimum contacts or fair play test or both tests.
2.
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
b. I can’t
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 “there oughta be a
law!”
3. Maybe if
Burnham had avoided traveling to
a. I believe
b. This seems
reasonable to me. This is the sort of
legislative solution that Scalia would advocate.
4.
a. I think the
difference in the first case (Siemer) is that you’re 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 you’re 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.
5.
a. Brennan would
say there’s 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 “non-appearances” to see sick
children and the like, they should create this privilege by statute. Brennan would say that even if the person
came to
c. There are
certainly good policy reasons for this, but again, I don’t 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.