JUSTICE SCALIA announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and JUSTICE KENNEDY join, and in which JUSTICE WHITE joins with respect to Parts I, II-A, II-B, and II-C.
The question presented is 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.
Petitioner Dennis Burnham married Francie Burnham in 1976 in West Virginia. In 1977 the couple moved to New Jersey, where their two children were born. In July 1987 the Burnhams decided to separate. They agreed that Mrs. Burnham, who intended to move to California, would take custody of the children. Shortly before Mrs. Burnham departed for California that same month, she and petitioner agreed that she would file for divorce on grounds of "irreconcilable differences."
In October 1987, petitioner filed for divorce in New Jersey state court on grounds of "desertion." Petitioner did not, however, obtain an issuance of summons against his wife and did not attempt to serve her with process. Mrs. Burnham, after unsuccessfully demanding that petitioner adhere to
In late January, petitioner visited southern California on business, after which he went north to visit his children in the San Francisco Bay area, where his wife resided. He took the older child to San Francisco for the weekend. Upon returning the child to Mrs. Burnham's home on January 24, 1988, petitioner was served with a California court summons and a copy of Mrs. Burnham's divorce petition. He then returned to New Jersey.
Later that year, petitioner made a special appearance in the California Superior Court, moving to quash the service of process on the ground that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the State for the purposes of conducting business and visiting his children. The Superior Court denied the motion, and the California Court of Appeal denied mandamus relief, rejecting petitioner's contention that the Due Process Clause prohibited California courts from asserting jurisdiction over him because he lacked "minimum contacts" with the State. The court held it to be "a valid jurisdictional predicate for in personam jurisdiction" that the "defendant [was] present in the forum state and personally served with process." App. to Pet. for Cert. 5. We granted certiorari. 493 U.S. 807 (1989).
The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y. B. Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng. Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Coke Rep. 68b, 77a, 77 Eng. Rep. 1027, 1041 (K. B. 1612). Traditionally that proposition was embodied in the phrase coram non judice,
To determine whether the assertion of personal jurisdiction is consistent with due process, we have long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. That criterion was first announced in Pennoyer v. Neff, supra, in which we stated that due process "mean[s] a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights," id., at 733, including the "well-established principles of public law respecting the jurisdiction of an independent State over persons and property," id., at 722. In what has become the classic expression of the criterion, we said in International Shoe Co. v. Washington, 326 U.S. 310 (1945), that a state court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate " `traditional notions of fair play and substantial justice.' " Id., at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). See also Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). Since International Shoe, we have only been called upon to decide whether these "traditional notions" permit
Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter
Recent scholarship has suggested that English tradition was not as clear as Story thought, see Hazard, A General Theory of State-Court Jurisdiction, 1965 S. Ct. Rev. 241, 253-260; Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L. J. 289 (1956). Accurate or not, however, judging by the evidence of contemporaneous or near-contemporaneous decisions, one must conclude that Story's understanding was shared by American courts at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted. The following passage in a decision of the Supreme Court of Georgia, in an action on a debt having no apparent relation to the defendant's temporary presence in the State, is representative:
See also, e. g., Peabody v. Hamilton, 106 Mass. 217, 220 (1870) (relying on Story for the same principle); Alley v. Caspari, 80 Me. 234, 236-237, 14 A. 12, 13 (1888) (same).
Decisions in the courts of many States in the 19th and early 20th centuries held that personal service upon a physically present defendant sufficed to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there. See, e. g., Vinal v. Core, 18 W.Va. 1, 20 (1881); Roberts v. Dunsmuir, 75 Cal. 203, 204, 16 P. 782 (1888); De Poret v. Gusman, 30 La. Ann., pt. 2, pp. 930, 932 (1878); Smith v. Gibson, 83 Ala. 284, 285, 3 So. 321 (1887); Savin v. Bond, 57 Md. 228, 233 (1881); Hart v. Granger, 1 Conn. 154, 165 (1814); Mussina v. Belden, 6 Abb. Pr. 165, 176 (N. Y. Sup. Ct. 1858); Darrah v. Watson, 36 Iowa 116, 120-121 (1872); Baisley v. Baisley, 113 Mo. 544, 549-550, 21 S. W. 29, 30 (1893); Bowman v. Flint, 37 Tex. Civ. App. 28, 29, 82 S. W. 1049, 1050 (1904). See also Reed v. Hollister, 106 Or. 407, 412-414, 212 P. 367, 369-370 (1923); Hagen v. Viney, 124 Fla. 747, 751, 169 So. 391, 392-393 (1936); Vaughn
This American jurisdictional practice is, moreover, not merely old; it is continuing. It remains the practice of, not only a substantial number of the States, but as far as we are aware all the States and the Federal Government — if one disregards (as one must for this purpose) the few opinions since 1978 that have erroneously said, on grounds similar to those that petitioner presses here, that this Court's due process decisions render the practice unconstitutional. See Nehemiah v. Athletics Congress of U. S. A., 765 F.2d 42, 46-47 (CA3 1985); Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079, 1088-1091 (Kan. 1978), rev'd on other grounds, 611 F.2d 790 (CA10 1979); Harold M. Pitman Co. v. Typecraft Software Ltd., 626 F.Supp. 305, 310-314 (ND Ill. 1986); Bershaw v. Sarbacher, 40 Wn.App. 653, 657, 700 P.2d 347, 349 (1985); Duehring v. Vasquez, 490 So.2d 667, 671 (La. App. 1986). We do not know of a single state or federal statute, or a single judicial decision resting upon state law, that has abandoned in-state service as a basis of jurisdiction. Many recent cases reaffirm it. See Hutto v. Plagens, 254 Ga. 512,
Despite this formidable body of precedent, petitioner contends, in reliance on our decisions applying the International Shoe standard, that in the absence of "continuous and systematic" contacts with the forum, see n. 1, supra, a nonresident defendant can be subjected to judgment only as to matters that arise out of or relate to his contacts with the forum. This argument rests on a thorough misunderstanding of our cases.
The view of most courts in the 19th century was that a court simply could not exercise in personam jurisdiction over a nonresident who had not been personally served with process in the forum. See, e. g., Reber v. Wright, 68 Pa. 471, 476-477 (1871); Sturgis v. Fay, 16 Ind. 429, 431 (1861); Weil v. Lowenthal, 10 Iowa 575, 578 (1860); Freeman, Law of Judgments, supra, at 468-470; see also D'Arcy v. Ketchum, 11 How. 165, 176 (1851); Knowles v. Gaslight & Coke Co., 19 Wall. 58, 61 (1874). Pennoyer v. Neff, while renowned for its statement of the principle that the Fourteenth Amendment
Later years, however, saw the weakening of the Pennoyer rule. In the late 19th and early 20th centuries, changes in the technology of transportation and communication, and the tremendous growth of interstate business activity, led to an "inevitable relaxation of the strict limits on state jurisdiction" over nonresident individuals and corporations. Hanson v. Denckla, 357 U.S. 235, 260 (1958) (Black, J., dissenting). States required, for example, that nonresident corporations appoint an in-state agent upon whom process could be served as a condition of transacting business within their borders, see, e. g., St. Clair v. Cox, 106 U.S. 350 (1882), and provided in-state "substituted service" for nonresident motorists who caused injury in the State and left before personal service could be accomplished, see, e. g., Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 274 U.S. 352 (1927). We initially upheld these laws under the Due Process Clause on grounds that they complied with Pennoyer's rigid requirement of either "consent," see, e. g., Hess v. Pawloski, supra, at 356, or "presence," see, e. g., Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 265 (1917). As many observed,
The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of "traditional notions of fair play and substantial justice." That standard was developed by analogy to "physical presence," and it would be perverse to say it could now be turned against that touchstone of jurisdiction.
Petitioner's strongest argument, though we ultimately reject it, relies upon our decision in Shaffer v. Heitner, 433 U.S. 186
It goes too far to say, as petitioner contends, that Shaffer compels the conclusion that a State lacks jurisdiction over an individual unless the litigation arises out of his activities in the State. Shaffer, like International Shoe, involved jurisdiction over an absent defendant, and it stands for nothing more than the proposition that when the "minimum contact" that is a substitute for physical presence consists of property ownership it must, like other minimum contacts, be related to the litigation. Petitioner wrenches out of its context our statement in Shaffer 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. When read together with the two sentences that preceded it, the meaning of this statement becomes clear:
Shaffer was saying, in other words, not that all bases for the assertion of in personam jurisdiction (including, presumably, in-state service) must be treated alike and subjected to the "minimum contacts" analysis of International Shoe; but rather that quasi in rem jurisdiction, that fictional "ancient form," and in personam jurisdiction, are really one and the same and must be treated alike — leading to the conclusion that quasi in rem jurisdiction, i. e., that form of in personam jurisdiction based upon a "property ownership" contact and by definition unaccompanied by personal, in-state service, must satisfy the litigation-relatedness requirement of International Shoe. The logic of Shaffer's holding — which places all suits against absent nonresidents on the same constitutional footing, regardless of whether a separate Latin label is attached to one particular basis of contact — does not compel the conclusion that physically present defendants must be treated identically to absent ones. As we have demonstrated at length, our tradition has treated the two classes of defendants quite differently, and it is unreasonable to read Shaffer as casually obliterating that distinction. International Shoe confined its "minimum contacts" requirement to situations in which the defendant "be not present within the territory of the forum," 326 U. S., at 316, and nothing in Shaffer expands that requirement beyond that.
It is fair to say, however, that while our holding today does not contradict Shaffer, our basic approach to the due process question is different. We have conducted no independent inquiry into the desirability or fairness of the prevailing instate service rule, leaving that judgment to the legislatures that are free to amend it; for our purposes, its validation is its pedigree, as the phrase "traditional notions of fair play and substantial justice" makes clear. Shaffer did conduct such an independent inquiry, asserting that " `traditional notions of fair play and substantial justice' can be as readily offended
A few words in response to JUSTICE BRENNAN's opinion concurring in the judgment: It insists that we apply "contemporary notions of due process" to determine the constitutionality of California's assertion of jurisdiction. Post, at 632. But our analysis today comports with that prescription, at least if we give it the only sense allowed by our precedents. The "contemporary notions of due process" applicable to personal
But the concurrence's proposed standard of "contemporary notions of due process" requires more: It measures state-court jurisdiction not only against traditional doctrines in this country, including current state-court practice, but also against each Justice's subjective assessment of what is fair and just. Authority for that seductive standard is not to be found in any of our personal jurisdiction cases. It is, indeed, an outright break with the test of "traditional notions of fair play and substantial justice," which would have to be reformulated "our notions of fair play and substantial justice."
The subjectivity, and hence inadequacy, of this approach becomes apparent when the concurrence tries to explain why the assertion of jurisdiction in the present case meets its standard of continuing-American-tradition-plus-innate-fairness. JUSTICE BRENNAN lists the "benefits" Mr. Burnham derived from the State of California — the fact that, during the few days he was there, "[h]is health and safety [were] guaranteed by the State's police, fire, and emergency medical services; he [was] free to travel on the State's roads and waterways; he likely enjoy[ed] the fruits of the State's economy." Post, at 637-638. Three days' worth of these benefits strike us as powerfully inadequate to establish, as an abstract matter, that it is "fair" for California to decree the ownership of all Mr. Burnham's worldly goods acquired during the 10 years of his marriage, and the custody over his children. We daresay a contractual exchange swapping those benefits for that power would not survive the "unconscionability" provision of the Uniform Commercial Code. Even less persuasive are the other "fairness" factors alluded to by JUSTICE BRENNAN. It would create "an asymmetry," we are told, if Burnham were permitted (as he is) to appear
There is, we must acknowledge, one factor mentioned by JUSTICE BRENNAN that both relates distinctively to the assertion of jurisdiction on the basis of personal in-state service and is fully persuasive — namely, the fact that a defendant voluntarily present in a particular State has a "reasonable expectatio[n]" that he is subject to suit there. Post, at 637. By formulating it as a "reasonable expectation" JUSTICE BRENNAN makes that seem like a "fairness" factor; but in reality, of course, it is just tradition masquerading as "fairness." The only reason for charging Mr. Burnham with the reasonable expectation of being subject to suit is that the
While JUSTICE BRENNAN's concurrence is unwilling to confess that the Justices of this Court can possibly be bound by a continuing American tradition that a particular procedure is fair, neither is it willing to embrace the logical consequences of that refusal — or even to be clear about what consequences (logical or otherwise) it does embrace. JUSTICE BRENNAN says that "[f]or these reasons [i. e., because of the reasonableness factors enumerated above], 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." Post, at 639. The use of the word "rule" conveys the reassuring feeling that he is establishing a principle of law one can rely upon — but of course he is not. Since JUSTICE BRENNAN's only criterion of constitutionality is "fairness," the phrase "as a rule" represents nothing more than his estimation that, usually, all the elements of "fairness" he discusses in the present case will exist. But what if they do not? Suppose, for example, that a defendant in Mr. Burnham's situation enjoys not three days' worth of California's "benefits," but 15 minutes' worth. Or suppose we remove one of those "benefits" — "enjoy[ment of] the fruits of the State's economy" — by positing that Mr. Burnham had not
The difference between us and JUSTICE BRENNAN has nothing to do with whether "further progress [is] to be made" in the "evolution of our legal system." Post, at 631, n. 3. It has to do with whether changes are to be adopted as progressive by the American people or decreed as progressive by the Justices of this Court. Nothing we say today prevents individual States from limiting or entirely abandoning the in-state-service basis of jurisdiction. And nothing prevents an overwhelming majority of them from doing so, with the consequence that the "traditional notions of fairness" that this Court applies may change. But the States have overwhelmingly declined to adopt such limitation or abandonment, evidently not considering it to be progress.
* * *
JUSTICE WHITE, concurring in part and concurring in the judgment.
I join Parts I, II-A, II-B, and II-C of JUSTICE SCALIA's opinion and concur in the judgment of affirmance. The rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum State, without more, has been and is so widely accepted throughout this country that I could not possibly strike it down, either on its face or as applied in this case, on the ground that it denies due process of law guaranteed by the Fourteenth Amendment. Although the Court has the authority under the Amendment to examine even traditionally accepted procedures and declare them invalid, e. g., Shaffer v. Heitner, 433 U.S. 186 (1977), there has been no showing here or elsewhere that as a general proposition the rule is so arbitrary and lacking in common sense in so many instances that it should be held violative of due process in every case. Furthermore, until such a showing is made, which would be difficult indeed, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained. At least this would be the case where presence in the forum State is intentional, which would almost always be the fact. Otherwise, there would be endless, fact-specific litigation in the trial and appellate courts, including this one. Here, personal service in California, without more, is enough, and I agree that the judgment should be affirmed.
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
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 (1945), and Shaffer v. Heitner, 433 U.S. 186 (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, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940).
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 (1905), that the interest of a creditor in a debt
Tradition, though alone not dispositive, is of course relevant to the question whether the rule of transient jurisdiction is consistent with due process.
Rather, I find the historical background relevant because, however murky the jurisprudential origins of transient jurisdiction,
By visiting the forum State, a transient defendant actually "avail[s]" himself, Burger King, supra, at 476, 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 water-ways;
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, at 474, quoting McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957). That the defendant has already journeyed
JUSTICE STEVENS, concurring in the judgment.
As I explained in my separate writing, I did not join the Court's opinion in Shaffer v. Heitner, 433 U.S. 186 (1977), because I was concerned by its unnecessarily broad reach. Id., at 217-219 (opinion concurring in judgment). The same concern prevents me from joining either JUSTICE SCALIA's or JUSTICE BRENNAN's opinion in this case. For me, it is sufficient to note that the historical evidence and consensus identified by JUSTICE SCALIA, the considerations of fairness identified by JUSTICE BRENNAN, and the common sense displayed by JUSTICE WHITE, all combine to demonstrate that this is, indeed, a very easy case.
It seems that Justice Story's interpretation of historical practice amounts to little more than what Justice Story himself perceived to be "fair and just." See ante, at 611 (quoting Justice Story's statement that " `[w]here a party is within a territory, he may justly be subjected to its process' ") (emphasis added and citation omitted). I see no reason to bind ourselves forever to that perception.
It is possible to distinguish these cases narrowly on their facts, as JUSTICE SCALIA demonstrates. See ante, at 614-615, n. 3. Thus, Molony could be characterized as a case about the reluctance of one State to punish assaults occurring in another, Gardner as a forum non conveniens case, and Coleman's Appeal as a case in which there was no in-state service of process. But such an approach would mistake the trees for the forest. The truth is that the transient rule as we now conceive it had no clear counterpart at common law. Just as today there is an interaction among rules governing jurisdiction, forum non conveniens, and choice of law, see, e. g., Ferens v. John Deere Co., 494 U.S. 516, 530-531 (1990); Shaffer, 433 U.S. 186, 224-226 (1977) (BRENNAN, J., concurring in part and dissenting in part); Hanson v. Denckla, 357 U.S. 235, 256 (1958) (Black, J., dissenting), at common law there was a complex interplay among pleading requirements, venue, and substantive law — an interplay which in large part substituted for a theory of "jurisdiction":
"A theory of territorial jurisdiction would in any event have been premature in England before, say, 1688, or perhaps even 1832. Problems of jurisdiction were the essence of medieval English law and remained significant until the period of Victorian reform. But until after 1800 it would have been impossible, even if it had been thought appropriate, to disentangle the question of territorial limitations on jurisdiction from those arising out of charter, prerogative, personal privilege, corporate liberty, ancient custom, and the fortuities of rules of pleading, venue, and process. The intricacies of English jurisdictional law of that time resist generalization on any theory except a franchisal one; they seem certainly not reducible to territorial dimension.
"The English precedents on jurisdiction were therefore of little relevance to American problems of the nineteenth century." Hazard, A General Theory of State-Court Jurisdiction, 1965 S. Ct. Rev. 241, 252-253 (footnote omitted).
See also Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 617 (1988). The salient point is that many American courts followed English precedents and restricted the place where certain actions could be brought, regardless of the defendant's presence or whether he was served there.
I note, moreover, that the dual conclusions of JUSTICE SCALIA's opinion create a singularly unattractive result. JUSTICE SCALIA suggests that when and if a jurisdictional rule becomes substantively unfair or even "unconscionable," this Court is powerless to alter it. Instead, he is willing to rely on individual States to limit or abandon bases of jurisdiction that have become obsolete. See ante, at 627, and n. 5. This reliance is misplaced, for States have little incentive to limit rules such as transient jurisdiction that make it easier for their own citizens to sue out-of-state defendants. That States are more likely to expand their jurisdiction is illustrated by the adoption by many States of long-arm statutes extending the reach of personal jurisdiction to the limits established by the Federal Constitution. See 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore's Federal Practice ¶ 4.41-1, p. 4-336 (2d ed. 1989); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, pp. 336-339 (1987). Out-of-staters do not vote in state elections or have a voice in state government. We should not assume, therefore, that States will be motivated by "notions of fairness" to curb jurisdictional rules like the one at issue here. The reasoning of JUSTICE SCALIA's opinion today is strikingly oblivious to the raison d'etre of various constitutional doctrines designed to protect out-of-staters, such as the Art. IV Privileges and Immunities Clause and the Commerce Clause.