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Civil Procedure Keyed to Marcus

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Burnham v. Superior Court of California

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Facts

After the Petitioner and his wife agreed to divorce, Mr. Burnham filed a Petition for Divorce in New Jersey based on grounds of “desertion.” However, Petitioner did not obtain the issuance of a summons nor did he attempt to serve her with process. Mrs. Burnham was not successful in convincing Mr. Burnham to heed their prior agreement. Therefore, in 1988, Mrs. Burnham filed suit for divorce in California. In January, 1988, Petitioner visited San Francisco, California as part of a business trip and to visit his children. While in San Francisco, Petitioner was served with a copy of Mrs. Burnham’s divorce petition. Petitioner sought relief in the California state courts, asserting that the Due Process Clause of the Fourteenth Amendment prohibited California courts from obtaining jurisdiction over him because he lacked “minimum contacts” with the state. His only contacts with the state were a few short visits to conduct business and to visit his children. The Superior Court denied his Motion to Quash, and the Court of Appeals of California denied his Petition for Writ of Mandamus. The court held that physical presence in the state when service is obtained is sufficient personal jurisdiction.

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Q.1 - Which constitutional inference most precisely underlies Justice Scalia’s assertion that transient jurisdiction satisfies the Due Process Clause without requiring an additional fairness inquiry?

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(A) That the original public meaning of “due process” in the Fourteenth Amendment incorporated jurisdictional practices widely accepted in Anglo-American law at the time of ratification.

Correct! Scalia’s argument rests on original public meaning: if a jurisdictional practice was widespread and uncontroversial when the Fourteenth Amendment was adopted, it is per se consistent with “due process.” His position treats constitutional validity as anchored in legal history rather than modern normative balancing.

(B) That due process, when applied to jurisdiction, requires conformity to evolving standards of justice drawn from procedural due process jurisprudence.

Incorrect. B is incorrect because Scalia rejected evolving standards as constitutionally binding.

(C) That Article III imposes coextensive limits on state and federal personal jurisdiction, making state practice irrelevant to constitutional analysis.

Incorrect. C is incorrect because the Due Process Clause limits state authority directly; Article III applies only to federal courts.

(D) That general jurisdiction principles apply only to in personam actions arising from in-forum conduct and thus do not control transient presence cases.

Incorrect. D is incorrect because Scalia affirmed that transient jurisdiction is valid for all in personam actions, not just those tied to forum conduct.

Q.2 - In doctrinal terms, how does Justice Brennan’s concurrence reframe the legitimacy of transient jurisdiction compared to Justice Scalia’s historical formalism?

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(A) By interpreting the Privileges and Immunities Clause as a structural limit on state assertions of jurisdiction over nonresidents lacking substantial ties.

Incorrect. A is incorrect because the Privileges and Immunities Clause was not central to his analysis.

(B) By insisting that legitimacy under the Due Process Clause must be assessed through a functional test of voluntariness and foreseeability, even for historically recognized jurisdictional forms.

Correct! Brennan argued that due process is not static: even time-honored jurisdictional doctrines must conform to modern notions of fairness, foreseeability, and consent. He viewed voluntariness and the expectations of the defendant as constitutionally essential.

(C) By analogizing jurisdictional fairness to equal protection concerns, requiring symmetry in jurisdictional exposure across similarly situated defendants.

Incorrect. C is incorrect because Brennan did not frame the issue as one of equal protection parity.

(D) By reclassifying in-state service as a form of constructive notice, insufficient on its own to satisfy modern procedural due process standards.

Incorrect. D is incorrect because he did not dispute that service gives notice — he questioned whether presence alone is sufficient to confer fairness.

Q.3 - Which of the following best expresses the Court’s implicit resolution of the potential doctrinal tension between International Shoe Co. v. Washington and Burnham v. Superior Court?

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(A) That International Shoe abolished traditional bases of jurisdiction, including transient presence, in favor of a unitary minimum contacts regime.

Incorrect. A is incorrect because International Shoe did not abrogate traditional jurisdictional grounds.

(B) That Burnham applies only in the context of family law or quasi in rem disputes, not commercial or tort-based claims.

Incorrect. B is incorrect because Burnham applies beyond family law.

(C) That International Shoe governs where jurisdiction is asserted outside historically accepted categories, but it does not displace doctrines firmly embedded in pre-modern due process tradition.

Correct! The Court harmonized Burnham and International Shoe by preserving two distinct tracks: one for traditional forms of jurisdiction (like transient presence), and another for cases not rooted in historical practice, where minimum contacts analysis governs.

(D) That Burnham preserves transient jurisdiction only as a jurisdictional fiction subject to future override by state legislation.

Incorrect. D is incorrect because the Court upheld transient jurisdiction as constitutionally entrenched, not subject to override.

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Burnham v. Superior Court of California