CRS Annotated Constitution

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In Personam Proceedings Against Individuals.—As has been noted, presence within the State with service of process is sufficient to create personal jurisdiction over an individual.94 In the case of a resident, absence alone will not defeat the processes of courts in the State of his domicile; domicile alone is deemed to be sufficient to keep him within reach of the state courts for purposes of a personal judgment, whether obtained by means of appropriate, substituted service or by actual personal service on the resident[p.1708]outside the State.95 However, if the defendant, although technically domiciled therein, has left the State with no intention to return, service by publication, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate, inasmuch as it is not reasonably calculated to give actual notice of the proceedings and opportunity to be heard.96

With respect to a nonresident, it is clearly established that no person can be deprived of property rights by a decree in a case in which he neither appeared nor was served or effectively made a party.97 The early cases held that the process of a court of one State could not run into another and summon a party there domiciled to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment.98 The attenuation of the rule proceeded in steps. Consent was, of course, sufficient to create jurisdiction, even in the absence of any other connection between the litigation and the forum, and for example, the appearance of the defendant for any purpose other than to challenge the jurisdiction of the court was deemed a voluntary submission to the court’s power,99 and even a special appearance may be treated as consensual submission to the court.100 Constructive consent, therefore, was seized upon as a basis for obtaining jurisdiction, and, with the advent of the automobile, States were permitted, under the fiction of conditioning the use of their highways on receipt of consent to be sued in state courts for accidents or other transactions arising out of such use, to designate a state official as a proper person to receive service of process in such litigation, provided only that the official receiving notice is obligated to communicate it to the person sued.101 Although the Court verbalized the result in consent terms, the basis was really the State’s power to regulate local acts dangerous to life or property.102 This extension was necessary in order[p.1709]to permit States to assume jurisdiction over individuals “doing business” within the State, inasmuch as the State could not withhold from nonresident individuals the right of doing business subject to consent to be sued.103 Thus, the Court soon recognized that “doing business” within a State was itself a sufficient basis for jurisdiction over a nonresident individual, at least where the business done was exceptional enough to create a strong state interest in regulation, and service could be effectuated within the State on an agent appointed to carry out the business.104

Culmination of the trend was, of course, the promulgation in International Shoe Co. v. Washington,105 a corporations case, of the “minimum contacts” test of jurisdiction. In the context of in personam jurisdiction over individuals, the test is illustrated by Kulko v. Superior Court,106 in which the Court held that California could not obtain personal jurisdiction over a New York resident whose sole relevant contact with the State was to send his daughter to live with her mother in California.107 “Like any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test . . . is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.”108 Without deciding that the standard was relevant, the Court noted that the “effects” test of contacts, that Kulko had “caused an effect” in the State by availing himself of the benefits and protections of California’s laws and by deriving an economic benefit in the lessened expense of maintaining the daughter in New York, was not applicable; it was deemed by the Court to involve wrongful activity outside a State which causes injury within the State or commercial activity affecting state residents, factors not present in this case. Any economic benefit to Kulko was derived in New York and not in California.109 As with many such cases, the decision was narrowly limited to its facts and does little to clarify the standards applicable to state jurisdiction over nonresidents.


94 McDonald v. Mabee, 243 U.S. 90, 91 (1917) . Cf. Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913) . The rule has been strongly criticized but persists. Ehrenzweig, The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum Conveniens, 65 L. J. 289 (1956). But in Burnham v. Superior Court, 495 U.S. 604 (1990) , the Court held that service of process on a nonresident physically present within the state satisfies due process regardless of the duration or purpose of the nonresident’s visit.
95 Milliken v. Meyer, 311 U.S. 457 (1940) .
96 McDonald v. Mabee, 243 U.S. 90 (1917) .
97 Rees v. Watertown, 86 U.S. (19 Wall.) 107 (1874); Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 (1915) ; Griffin v. Griffin, 327 U.S. 220 (1946) .
98 Sugg v. Thornton, 132 U.S. 524 (1889) ; Riverside Mills v. Menefee, 237 U.S. 189, 193 (1915) ; Hess v. Pawloski, 274 U.S. 352, 355 (1927) . See also Harkness v. Hyde, 98 U.S. 476 (1879) ; Wilson v. Seligman, 144 U.S. 41 (1892) .
99 Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900) ; Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908) ; Houston v. Ormes, 252 U.S. 469 (1920) . See also Adam v. Saenger, 303 U.S. 59 (1938) (plaintiff suing defendants deemed to have consented to jurisdiction with respect to counterclaims asserted against him).
100 York v. Texas, 137 U.S. 15 (1890) ; Kauffman v. Wootters, 138 U.S. 285 (1891) ; Western Indemnity Co. v. Rupp, 235 U.S. 261 (1914) .
101 Hess v. Pawloski, 274 U.S. 352 (1927) : Wuchter v. Pizzutti, 276 U.S. 13 (1928) ; Olberding v. Illinois Central R. Co., 346 U.S. 338, 341 (1953) .
102 Hess v. Pawloski, 274 U.S. 352, 356–57 (1927) .
103 Id. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919) .
104 Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935) .
105 326 U.S. 310, 316 (1945) .
106 436 U.S. 84 (1978) .
107 Kulko had visited the State twice, seven and six years respectively before initiation of the present action, his marriage occurring in California on the second visit, but neither the visits nor the marriage was sufficient or relevant to jurisdiction. Id. at 92–93.
108 Id. at 92.
109 Id. at 96–98.
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