Burnham v. Superior Court
Does the Due Process Clause of the Fourteenth Amendment prohibit a state court from exercising personal jurisdiction over a nonresident defendant who is personally served with process while temporarily present in the forum state?
The Decision
9-0 decision · Opinion by Antonin Scalia (plurality opinion; no single opinion commanded a majority of the Court) · 1990
Majority Opinion— Antonin Scalia (plurality opinion; no single opinion commanded a majority of the Court)concurring ↓
The Supreme Court unanimously affirmed the California courts, holding that serving Dennis Burnham with process while he was physically present in California was sufficient to establish personal jurisdiction over him, and that this did not violate the Due Process Clause of the Fourteenth Amendment. The vote was 9–0 on the outcome, but the justices could not agree on a single rationale, so there was no majority opinion — only a plurality opinion and concurrences.
Justice Antonin Scalia wrote the plurality opinion, joined in full by Chief Justice William Rehnquist and Justice Anthony Kennedy, and joined in substantial part by Justice Byron White. Scalia argued that the rule of 'transient jurisdiction' — the principle that a court gains power over anyone physically present within its borders who is served with legal papers — was one of the most deeply rooted principles in American law. He emphasized that this rule was firmly established at the time the Fourteenth Amendment was adopted in 1868, and he argued that a jurisdictional practice with such a long and unbroken historical pedigree was, by definition, consistent with 'traditional notions of fair play and substantial justice.' In Scalia's view, the modern 'minimum contacts' test from International Shoe was designed to expand jurisdiction to cover new situations — such as corporations doing business across state lines — and was never intended to eliminate traditional bases of jurisdiction like physical presence.
Justice William Brennan wrote a separate opinion concurring in the judgment, joined by Justices Thurgood Marshall, Harry Blackmun, and Sandra Day O'Connor. Brennan agreed with the result but strongly disagreed with Scalia's reasoning. In Brennan's view, history alone could not settle the question; every exercise of jurisdiction had to be tested against the modern due process framework of International Shoe. However, Brennan concluded that transient jurisdiction easily passed that test. A person who is voluntarily present in a state benefits from that state's laws and services, and it is entirely fair and reasonable for that state's courts to exercise jurisdiction over them.
Justice John Paul Stevens wrote a brief concurrence in the judgment suggesting that both the historical pedigree of the rule and its fairness under modern due process standards independently supported the result, and that it was unnecessary for the Court to choose one rationale over the other. The practical effect of the decision was clear and unanimous: if you are voluntarily present in a state and you are properly served with legal papers, that state's courts have jurisdiction over you, regardless of whether you live there or have any other connections to the state.
Concurring Opinions
Justice Brennan's concurrence (joined by Marshall, Blackmun, and O'Connor) was highly significant because it offered a fundamentally different rationale from Scalia's plurality: rather than relying on historical tradition, Brennan argued that transient jurisdiction must be — and can be — justified under the modern International Shoe due process framework, because a person voluntarily present in a state enjoys its legal protections and can fairly be called to answer in its courts. Justice Stevens concurred separately, arguing that both historical pedigree and modern fairness analysis supported the outcome, making it unnecessary to choose between the competing approaches of Scalia and Brennan.
Background & Facts
Dennis Burnham and Francie Burnham were married and living together in New Jersey with their two children. In 1987, the couple agreed to separate, and they also agreed that Francie would move to California with the children. Dennis remained in New Jersey. The couple negotiated over the terms of a divorce, but they could not reach a final agreement on the division of property and spousal support.
In January 1988, Dennis traveled to California on a business trip. While there, he also visited his children for a few days in the San Francisco Bay Area. As Dennis was leaving the home where the children were staying after a weekend visit, he was served with a California court summons and a copy of Francie's divorce petition. In other words, he was handed legal papers while physically standing in California — even though he did not live there and was only passing through.
Dennis objected. He filed a motion in the California Superior Court asking it to 'quash' (throw out) the service of the summons. His argument was straightforward: he was not a California resident, and his only connections to California were a brief business trip and a short visit with his children. He contended that under modern constitutional standards of due process, those contacts were too thin for California to haul him into its courts.
The California Superior Court denied Dennis's motion, and the California Court of Appeal also ruled against him, declining to order the lower court to dismiss the case. Dennis then asked the U.S. Supreme Court to review the case.
The Supreme Court agreed to take the case because it raised a fundamental and unresolved question about personal jurisdiction — the power of a court to require a particular person to appear before it and be bound by its decisions. Specifically, the justices wanted to address whether the ancient practice of 'tag jurisdiction,' where physical presence alone in a state allows that state's courts to assert jurisdiction, survived modern constitutional scrutiny under the Due Process Clause.
The Arguments
Dennis argued that being briefly present in California on a business trip and a visit with his children was not enough to give California courts power over him in a divorce case. He contended that under the Supreme Court's modern due process framework, a state must show that a nonresident has meaningful, ongoing contacts with the state before claiming jurisdiction over him.
- He was a resident of New Jersey, not California, and had no home, job, or other permanent ties there.
- The Supreme Court's decision in International Shoe v. Washington (1945) replaced old, rigid rules about jurisdiction with a flexible due process test requiring 'minimum contacts' with the forum state, and he lacked such contacts.
- Allowing jurisdiction based solely on momentary physical presence is an outdated rule that fails to meet modern standards of fairness and substantial justice.
The respondent argued that physically serving a person with legal papers while that person is voluntarily present in a state is one of the oldest and most firmly established grounds for personal jurisdiction in American law, and it fully satisfies the requirements of due process.
- The rule that physical presence allows jurisdiction predates the Constitution itself and has been consistently recognized by American courts for centuries.
- Dennis was not tricked or forced into coming to California — he came voluntarily for business and personal reasons.
- A person physically present in a state enjoys the protections of that state's laws (such as police and fire protection, access to courts, and safe roads), and it is therefore fair for that state's courts to exercise authority over him.