Burnham v. Superior Court

Burnham v. Superior Court

A weekend outing with a child gave California a divorce action against a man who lived in New Jersey. In Burnham v. Superior Court, the Supreme Court upheld the rule this chapter opened with: a state court may exercise personal jurisdiction over a nonresident who is personally served while physically present in the state, even if the visit is brief and the claim is unrelated to it.¹

Mr. and Mrs. Burnham agreed in 1987 to separate and to submit to an “irreconcilable differences” divorce, with Mrs. Burnham taking custody of the children and filing in California.² Mr. Burnham went another way. He sued for divorce in New Jersey on grounds of desertion, but he never obtained a summons against his wife and made no attempt to serve her.³ When Mrs. Burnham unsuccessfully demanded that he adhere to their agreement, she filed for divorce in California state court in early January 1988.⁴

In late January, Mr. Burnham visited southern California on business and then went north to see his children in the San Francisco Bay area, where his wife lived. He took the older child to San Francisco for the weekend. When he returned the child to Mrs. Burnham’s home on January 24, 1988, he was handed a California summons and a copy of her divorce petition, and he then went back to New Jersey.⁵ The petition sought custody of the children and financial support. Either remedy would affect his parental rights and his pocketbook, so the California court could grant it only if it had personal jurisdiction over him.⁶ The summons handed to him at her door was the event on which the court’s power over him depended.

Mr. Burnham made a special appearance in the California Superior Court, an appearance made only to contest jurisdiction, so that objecting does not itself submit the defendant to it, and moved to quash service of process. He argued that his only contacts with California were a few short visits to conduct business and to see his children.⁷ The California courts refused to quash. They held it “a valid jurisdictional predicate for in personam jurisdiction” that the “defendant [was] present in the forum state and personally served with process,” and they rejected his argument that due process forbids jurisdiction over a defendant who lacks minimum contacts with the state.⁸ The Supreme Court then granted certiorari, its discretionary decision to review a lower-court ruling.

The Court framed the question 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.”⁹ The question is narrower than it first sounds. The Court had accepted departures from the traditional presence rule only for absent defendants, and only in suits arising out of their contacts with the state. What remained open was whether due process demands a similar connection between the litigation and the defendant’s contacts when the defendant is physically in the state at the time of service.¹⁰

The Court affirmed, and the holding has three working parts. First, the summons was delivered inside California, and in a tag case the place of delivery is what makes presence count. Second, Mr. Burnham was in California voluntarily, a limit the Justices share and later sections of this chapter develop. Third, the stay was short and the claim was unrelated to it, and the Court tolerated both. Taken together, the Due Process Clause does not bar a state court from exercising jurisdiction over a nonresident who is personally served while voluntarily present in the state, even when the visit is brief and the claim is unrelated to it.¹¹

Justice Scalia’s opinion rests that result on tradition. It calls jurisdiction over nonresidents who are physically present in the state “among the most firmly established principles of personal jurisdiction in American tradition.” It traces that principle to the early view that a state could haul before its courts any individual found within its borders and, once he was properly served, keep jurisdiction to enter judgment against him no matter how fleeting his visit.¹² That is why the analysis never asks what Mr. Burnham did in California beyond being there. He is the paradigm case: a New Jersey resident with a few short California visits, served at the door of his wife’s California home, whose case the California courts kept.

Where the papers change hands does the work. A variation on the facts shows it.

No single opinion in Burnham commanded a majority. Justice Scalia announced the judgment of the Court in an opinion that the Chief Justice and Justice Kennedy joined; Justice White joined Parts I, II-A, II-B, and II-C, which gives those parts four votes. Justice Brennan concurred in the judgment in an opinion joined by Justices Marshall, Blackmun, and O’Connor, and Justice Stevens concurred in the judgment separately.¹³ All nine Justices therefore voted to affirm, but the rule of decision must be assembled from opinions that agree on the result and part ways on the reason. Some Justices found the strong history of transient jurisdiction sufficient by itself. Four others thought tradition important but not dispositive, insisted on an independent inquiry into fairness, and found no unfairness on these facts.¹⁴ What the opinions share is that tag, without more, remains a legitimate and constitutional basis for jurisdiction over a nonresident, at least when the defendant was voluntarily present in the forum.¹⁵