§14.02 Jurisdiction

• Jurisdiction: Washington

§ 14.02 JURISDICTION

Jurisdiction, generally speaking, is the power of a court to hear and determine a case.

The concept of jurisdiction encompasses two distinct elements: subject matter jurisdiction and territorial jurisdiction. Territorial jurisdiction is further divided between jurisdiction over persons (in personam or personal jurisdiction) and jurisdiction over things (in rem jurisdiction). As detailed below, in contemporary usage, territorial jurisdiction is almost always referred to as, and analyzed in terms of, personal jurisdiction.

[1] Subject Matter Jurisdiction

Subject matter jurisdiction is the authority of a court to adjudicate a particular kind of suit (i.e., admiralty, bankruptcy, marital dissolution, etc.). Washington courts have said that subject matter jurisdiction refers to the ability of the court to entertain a type of controversy. In re Schneider, 173 Wn.2d 353, 360, 268 P.3d 215 (2011); see also State v. Posey, 174 Wn.2d 131, 139, 272 P.3d 840 (2012); Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d 818 (2011). Subject matter jurisdiction in the American judicial system is often described as being divided between courts of general jurisdiction and courts of specific jurisdiction.

General jurisdiction courts are granted the authority to hear and decide all issues brought before them. State superior courts are general jurisdiction courts.

As courts of general jurisdiction, Washington courts are granted the authority to adjudicate family lawsuits: "In Washington, our superior courts are courts of general jurisdiction and have the authority to hear and decide cases in equity and all cases at law for which jurisdiction has not been vested by law in some other court. Sheats v. City of E. Wenatchee, 6 Wn. App. 2d 523, 534, 431 P.3d 489 (2018) (citing WASH. CONST. art. IV, § 6).

In addition, Washington state's constitution specifically grants its courts subject matter jurisdiction over "divorce, and for annulment of marriage." WASH. CONST. art. IV, § 6.

Specific jurisdiction courts have specific parameters setting forth the scope of their subject matter jurisdiction. Federal courts are specific jurisdiction courts and, therefore, can only hear cases (1) involving federal law or (2) when the parties have diverse citizenship and the amount in controversy exceeds $75,000.

The legislature cannot restrict the court's subject matter jurisdiction when the constitution has specifically granted it. Posey, 174 Wn.2d at 135 (citing Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 418, 63 P.2d 397 (1936)). However, the legislature may prescribe prerequisites to a court's exercise of constitutionally derived subject matter jurisdiction. Blanchard, 188 Wash. at 415.

Subject matter jurisdiction either exists or it does not; subject matter jurisdiction is not something that is gained or lost based on the actions of the parties to a given case. Subject matter jurisdiction can neither be consented to nor waived by the parties. In re Ruff, 168 Wn. App. 109, 275 P.3d 1175 (2012). An order entered by a court without subject matter jurisdiction is void. Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit Cnty., 135 Wn.2d 542, 556, 958 P.2d 962 (1998). A challenge to subject matter jurisdiction may be made at any time during or after a proceeding. In re Saltis, 94 Wn.2d 889, 621 P.2d 716 (1980); CR 60.

[2] Territorial Jurisdiction

Territorial jurisdiction is the court's ability to exercise authority over a person or thing within its political borders. In essence, the idea is that the state (and, by extension, its courts) has authority over people and property within its physical boundaries. Presumably, the idea is as old as polity itself.

The conventional term for territorial jurisdiction over people is "in personam" or "personal" jurisdiction. The conventional term for territorial jurisdiction over property is "in rem" or "quasi in rem" jurisdiction. When both parties to a suit reside in the same state, there is little doubt that the state possesses personal jurisdiction over them.

Complexities related to territorial jurisdiction arise from the fact that, whereas states are legal entities defined in terms of political boundaries, parties and their possessions are not so restrained and often move freely across these political boundaries. When parties to a suit reside in different states, questions arise as to the power of a given state to exercise its territorial jurisdiction over the foreign respondent.

In rem and in personam jurisdiction requirements initially belonged to distinct jurisprudential analyses. However, in a series of cases over the course of the 20th century, the Supreme Court increasingly subsumed in rem jurisdiction under the in personam legal framework—so much so, that in personam or personal jurisdiction has more or less displaced in rem and territorial jurisdiction in our lexicon.

Unlike subject matter jurisdiction, personal jurisdiction must be found over the parties in each case. There are four bases upon which a court may establish personal jurisdiction over parties: domicile, physical presence, minimum contacts, and consent. Each is discussed below.

[a] Domicile as Basis for Personal Jurisdiction

Firmly rooted in "traditional notions of fair play and substantial justice," forum-state domicile at the time suit is commenced apparently permits the exercise of personal jurisdiction regardless of the nature and quality of the domiciliary's contacts and whether or not the cause of action relates to his or her local activities. Burnham v. Superior Court, 495 U.S. 604, 110 S. Ct. 2105, 109 L. Ed. 2d 631 (1990).

Domicile is mainly a question of intent, which may be shown by the testimony of the parties and by the surrounding circumstances. See Maple v. Maple, 29 Wn.2d 858, 864, 189 P.2d 976 (1948). A detailed explanation of domicile can be found in Sasse v. Sasse, 41 Wn.2d 363, 365-66, 249 P.2d 380 (1952), in which the court held:

A legally competent person may choose his domicile. To acquire a domicile of choice, he must establish a dwelling place with the intention of making it his home. The fact of physical presence at a dwelling place and the intention to make it a home must concur, and, if they do so, the change of domicile takes place. A settled legal relation then exists between the person and the chosen place, expressed by designating that place his domicile. The intention must be to make a home there permanently, with no intention presently to have or seek a permanent home elsewhere. Upon all of these issues, the burden of proof is upon the one asserting his change of domicile. (Internal citations omitted.)

In lay terms, domicile is a person's "home." The logic of the Sasse holding would seem to preclude the existence of multiple, simultaneously held domiciles. And once established, domicile continues until it is changed by establishing a new domicile. The Sasse holding would seem to make it impossible for a person to lack a domicile. Finally, it would logically follow that if a person who is domiciled in Washington were to temporarily leave the state—for instance, on a vacation—Washington would still be able to exercise personal jurisdiction over the person, notwithstanding his or her physical absence from the state.

The domicile determination is a question of fact, with the burden of proof naturally falling on the party asserting that the domicile requirement is satisfied. Although physical presence should be fairly easy to determine, "intent to make a place one's home" is a far more subtle empirical question. Several factors may be probative (though not dispositive) of a party's intent to make Washington his or her home, including the situs of

• current residence/home ownership;
• bank accounts;
• voter registration;
• driver's license and car registration;
• club, church, and political memberships;
• tax return filings;
• mail receipt;
• business affiliations;
• children's school enrollment; and
• health insurance and primary care physician.

[b] Physical Presence as Basis for Personal Jurisdiction

Merely being physically present in Washington when served permits the exercise of in personam jurisdiction over nonresidents against whom suit is brought in any cause of action.

"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." Burnham, 495 U.S. at 610-11. By personally serving an individual with process while physically present within its borders, a state retains jurisdiction to bind that person to judgments and orders imposing personal obligations "no matter how fleeting his visit" and regardless of whether the lawsuit is related to his or her forum-related activities. Id. at 611.

Referred to as "transitory actions," Justice Story believed the principle, which he traced to Roman origins, to be firmly grounded in English tradition: "[B]y the common law[,] personal actions, being transitory, may be brought in any place, where the party defendant may be found, [for] every nation may . . . rightfully exercise jurisdiction over all persons within its domains." Justice Joseph Story, COMMENTARIES ON THE CONFLICT OF LAWS §§ 554, 543 (1846).

Such sweeping liability based merely on physical presence in a forum state has drawn criticism as unduly harsh and even a violation of "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). With typically peppery syntax, Justice Scalia defended the assertion of personal jurisdiction based on physical presence in the forum against this charge of unfairness:

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

...