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

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.