Rodney Paul HOSKINSON, Individually and as Surviving Parent of Vicki Lynne Hoskinson, Deceased, Plaintiffs/Appellants, v. STATE OF CALIFORNIA; California Department of Corrections, a State agency; California Board of Prison Terms; Robert McLean and Jane Doe McLean, Husband and Wife; Members of the California Board of Prison Terms, Individually and in Their Official Capacity; John Atwood and Alice Atwood, Husband and Wife, Defendants/Appellees.
No. 2 CA-CV 90-0048
Court of Appeals of Arizona, Division 2, Department A
Dec. 13, 1990
Review Denied July 9, 1991
168 Ariz. 250, 812 P.2d 1068
CONCLUSION
For the reasons stated in this opinion, the trial court‘s order of suppression is affirmed.
GERBER and EUBANK, JJ., concur.
Vicki Lynne HOSKINSON Through the Personal Representative of Her Estate, Robert FLEMING; Deborah Jane Carlson, Individually and as Surviving Parent of Vicki Lynne Hoskinson and George Glenn Carlson, Jr., Husband and Wife; Stephanie Dawn Hoskinson by Her Next Friend and Mother, Deborah Jane Carlson; Carie Lynn Carlson by Her Next Friend and Father, George Glenn Carlson; Brian William Carlson by His Next Friends and Parents, Deborah Jane Carlson and George Glenn Carlson, Jr., Plaintiffs/Appellants,
v.
STATE OF CALIFORNIA; California Department of Corrections, a State Agency; California Board of Prison Terms; Robert McLean, Individually and in His Official Capacity, and Jane Doe McLean, Husband and Wife; Members of the California Board of Prison Terms, Individually and in Their Official Capacities; John Atwood and Alice Atwood, Husband and Wife; Frank Jarvis Atwood, a Single Man, Defendants/Appellees.
No. 2 CA-CV 90-0048.
Court of Appeals of Arizona, Division 2, Department A.
Dec. 13, 1990.
Review Denied July 9, 1991.*
Haralson, Kinerk & Morey by Dale Haralson and Gregory G. Wasley, Tucson, for plaintiff/appellant Rodney Hoskinson.
Lewis and Roca by John P. Frank, Steven J. Labensky and Anne Rachel Aberbach, Phoenix, Bury, Moeller, Humphrey & O‘Meara by David C. Bury, Tucson, for defendants/appellees State of Cal., its agencies and officers.
Slutes, Sakrison, Even, Grant & Pelander by A. John Pelander, Tucson, for defendants/appellees John and Alice Atwood.
OPINION
LIVERMORE, Presiding Judge.
Frank Jarvis Atwood, a California parolee, kidnapped, sexually abused, and murdered Vicki Lynne Hoskinson in Tucson in September 1984. He wаs convicted of his crimes and sentenced to death. Vicki Lynne‘s parents brought this wrongful death suit against Atwood‘s parents, his parole officer, the State of California and various California agencies. The theory of the suit was that the defendants knew or reasonably should have known that Atwood was extraordinarily dangerous, that he had travelled through Arizona and might do so again, and that he was immi-
The plaintiffs assert three grounds for jurisdiction: specific jurisdiction, general jurisdiction, and jurisdiction by necessity. As to the first ground, relying on §§ 361 and 372 of the Restatement (Second) of Conflict of Laws (1971), plaintiffs contend that defendants are subject to jurisdiction in Arizona because, by their tortious failure to control Atwood in California, they either committed a tort in this state or engaged in conduct which they should reasonably have expected would cause an effect in this state. Evеn assuming the truth of plaintiffs’ factual assertions, however, their jurisdictional conclusions fly in the face of the decisions of both the United States Supreme Court and the Arizona Supreme Court.
The core of plaintiffs’ argument for specific jurisdiction is that the conduct of the defendants had the foreseeable consequence of injury in Arizona. As the Supreme Court has made abundantly clear, however, “‘foreseeability’ alone has never been a sufficient benchmark fоr personal jurisdiction under the Due Process Clause.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490, 500 (1980). While foreseeability is not irrelevant, the Court explained that “the foreseeability that is critical to due process ... is that the defendant‘s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501. Put another way, the defendant must have “fair warning that a particular activity may subject a person to the jurisdiсtion of a foreign sovereign.” Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683, 706 (1977) (Stevens, J., concurring). This fair warning requirement is met
if the defendant has “purposefully directed” his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984), and the litigation results from alleged injuries that “arise out of or relate to” those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984).
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528, 541 (1985). As Justice O‘Connor wrote in Asahi Metal Industry Co., Ltd v. Superior Court of California, Solano County, 480 U.S. 102, 112, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92, 104 (1987), “[t]he ‘substantial connection’ ... between the defеndant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.” (Citation omitted; emphasis original.)
As our supreme court noted in Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 273, 736 P.2d 2, 7 (1987), “if a defendant purposefully directs its activities at a particular forum, and the effects of its activities are reasonably foreseeable, jurisdiction is proper because the defendant can reasonably anticipate being called to account for its own actions.” As this statement implies, however, and as the supreme
Plaintiffs seek to avoid this result by arguing as to California that it is not a person within the meaning of the Fourteenth Amendment and is therefore not entitled to due process. Accordingly, they argue, the cases requiring minimum contacts for purposes of acquiring jurisdiction are simply inappositе. For this proposition, they cite two cases arising in very different contexts and not addressing due process, Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) and Pennsylvania v. New Jersey, 426 U.S. 660, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976). Moreover, this construction would mean that any state could be sued in any other state on any claim and would constitute a massive intrusion on traditional notions of federalism. Because Chavez v. State of Indiana, 122 Ariz. 560, 596 P.2d 698 (1979), required that due process tests be met to obtain personal jurisdiction over a state, and no case has held the contrary, we reject the argument.
Plaintiffs also contend that general jurisdiction may be asserted over the defendant State of California because its contacts with this state are so routine and continuous apart from the present case that it should be treated as doing business here. As a general proposition, general jurisdiction may be asserted over a nonresident defendant who has substantial or continuous and systematic contacts with the forum state whether or not related to the subject matter of the lawsuit. Helicopteros Nacionales de Colombia, S.A. v. Hall, supra; Batton v. Tennessee Farmers Mut. Ins. Co., supra. However, we have been cited to no decision, nor found any, upholding the assertion of general jurisdiction by one state over another. While Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), makes it clear that one state may be sued in the courts of another when specific jurisdiction is asserted, nothing in that case suggests that the courts of one state are free to assert jurisdiction over anоther state regardless of whether the subject of the suit involves activities of the defendant state directed at the forum state. The restrictions on jurisdiction arising out of the Due Process Clause “are a consequence of territorial limitations on the power of the respective States.” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958). To hold that one state may assert general jurisdiction over another would obliterate that limitation, as well as the status of states as “coequal sovеreigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498. Accordingly, we reject the claim of general jurisdiction.5
As a separate issue, the plaintiffs contend that the trial court erred in denying an award pursuant to
Affirmed.
LACAGNINA, J., concurs.
HATHAWAY, Judge, dissenting.
The United States Supreme Court has not addressed the specific jurisdictional issue before us, that is, whether due process permits a state‘s regulatory interest to be asserted over a defendant whose grossly negligent failure to control a dangerous, multiple child molester and parole violator from another state causes foreseeable harm in the forum. This matter comes before us on summary judgment entered in the trial court. If a genuine issue of material fact appears, the summary judgment should be reversed.
A little girl was kidnapped, sexually abused and murdered in Arizona, allegedly as a consequence of the combined conduct of Atwood, his parents and the gross negligence of a parole officer in California who failed to arrest or control Atwood, a newly-parolled, high risk, mentally disordered, sex offender. The officer possessed reports of at least five separate parole violations, several of which showed Atwood had left California. The parole officer failed to act, contrary to the strict supervision requirements of the Parole Procedures Manual and the
During the four-month period after Atwood‘s release on parole and before the murder, he was literally “out of control,” was addicted to cocaine and speed, was using a wide variety of other illegal drugs, was looking for children to molest, had told a friend that he would kill his next victim, was failing to attend counseling sessions, was carrying a weapon, and was traveling around the states of California, Arizona, New Mexico, Oklahoma and Texas, in violation of his parole and California statutes. Atwood‘s parents and McLean, his parole officer, had actual knowledge of some of those activities and ignored their duty to find out about the others. For example, police officers in Enid, Oklahoma offered to communicate information to several California agencies—three prisons, the Los Angeles Police Department, and McLean. No one replied to the two urgent teletypes sent several weeks prior to the murder; no one tried to control Atwood‘s illegal activities. It would appear obvious to any reasonable person, and particularly to a specially-qualified “high risk” parole officer such as McLean, that Atwood‘s pattern of crime would imminently recur. He had been deemed not subject to rehabilitation.
Atwood‘s parents, and especially parole officer McLean, should have been profoundly alarmed by Atwood‘s conduct in violation of parole. The only reasonable response to that knowledge would have been to take Atwood into immediate custody and control. Yet the only person who took action was a police officer from Enid, Oklahoma, whose repeated messages to
Arizona allows a legal remedy,
It is one thing to protect interstate cоmmerce and individuals’ due process rights by denying personal jurisdiction over out-of-state tortfeasors absent intentional and meaningful contacts with the forum state, World-Wide Volkswagen Corp., supra. It is quite another to use this rationale to deny legal recourse to those who suffer injury because of gross negligence having clearly foreseeable and grave consequences across a state line. A number of Arizona cities are closer to Los Angeles than the cities of northern California, both in distance and in meaningful contacts.
Arizona‘s regulatory interest is circumscribed by choice-of-law doctrine as reflected in the Restatement (Second) Conflict of Laws (1988 Revisions). Section 24 states that the underlying principle is “reasonableness.” Section 37 deals with the Hoskinson situation, and provides that a state may exercise personal jurisdiction when the defendant “causes effects in the state by an act done elsewhere ... unless the nature of the effects and of the individual‘s relationship to the state make the exercise of such jurisdiction unreasonable.” Thus § 37 concentrates not only on the defendant, as does the “purposeful availment” doctrine, but also on the effects of the act in the forum state. The comments state that the causing of effects by itself is not a sufficient basis for jurisdiction, but that several factors should be considered: (1) totality of contacts; (2) nature and quality of effects; and, (3) intention and foresеeability. All three factors are significantly present in the instant case.
The first is implicated, the two states being contiguous, sister states within a community of states. Dumping of parole violators, or a lackadaisical attitude of no responsibility to sister states in dealing with or failure to deal with a mobile criminal population, must not be countenanced. The Restatement, § 24, comment a, defines relationship in its broadest sense, not limited to economic contacts but inсluding “all physical and non-physical circumstances which may serve to link a person with a state.” Contiguity alone is not a substitute for “purposeful availment,” of course, but merely a component of one of the three factors.
As to the second, the “effect” at issue was a serious crime against an Arizona resident. The Restatement gives the example of a person who explodes dynamite close to the border of a contiguous state, causing injury within that other state. Other examples might include the strict liability required of owners of wild animals whose escape causes injury or damage,1 or noxious chemicals which poison the air across the border. In such instances, the issue becomes failure to control, rather than intent. In inherently dangerous situations intent is irrelevant.
The third factor, foreseeability, also has no absolute requirement of intent. Rather, foreseeability is established if the act “could reasonably have been expected” to cause effects within the other state. Certainly a good faith argument can be made that the California officials should have anticipated the strong possibility of crimes in Arizona from a dangerous parole violator who had left the state from Los Angeles. Defendants, by grossly negligent or intentional failure to control a known and extraordinarily dangerous child molester,
The Supreme Court has already used the “effects” test of § 37 to decide a personal jurisdiction issue, Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The Ninth Circuit used it in Brainerd v. Governors of University of Alberta, 873 F.2d 1257 (9th Cir.1989), finding intent because the out-of-state defendant responded to two phone calls and one letter sent to him from Arizona.
The Arizona Supreme Court used § 37 to decide Chavez v. State of Indiana for Logansport State Hosp., 122 Ariz. 560, 596 P.2d 698 (1979), a failure to control case factually similar to this one. The court concluded that thе defendants could not reasonably have foreseen a murder in Arizona two years after release. In the present case, the court should also apply § 37, but come to the opposite conclusion on foreseeability, because the facts are stronger. The period of time between release and the murder was not two years, but four months; the killer was not a mental patient released in good faith, but a parole violator for whom statе law mandated arrest; the earlier killer was out of touch with family and state officials during the two years after his release, whereas the latter had already been labelled “dangerous,” had told a friend he intended to kill a child, and had been in close contact with his family, who allegedly collaborated in his parole violation. The issue is not the simple negligence of Chavez, but intentional nonfeasance or gross negligence in violation of the California Penal Codе. See
The majority‘s decision relies on a single test for personal jurisdiction—“purposeful availment“—and gives it preeminence over all other considerations, although the Restatement (Second) Conflict of Laws recognizes other factors to be weighed, as previously discussed. The Supreme Court‘s recent decision in Burnham v. Superior Court, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990), ignored the petitioner‘s pleа of lack of “minimum contacts” and asserted personal jurisdiction over him; “purposeful availment” was not a factor. In McAleer v. Smith, 715 F.Supp. 1153, 1157 (D.R.I.1989), the court insightfully noted in discounting the applicability of the purposeful availment doctrine to tort claims:
Tortfeasors are at odds with the privileges, benefits, and protections of local laws. Therefore, jurisdictional determinations in tort cases focus on the causal link between the forum contact and the allegedly tortious act. (Emphasis added.)
Appellants cite numerous cases in which “purposeful availment” is moderated or even bypassed. O‘Neil v. Picillo, 682 F.Supp. 706 (D.R.I.1988), is particularly instructive. It involved thousands of barrels of volatile, toxic wastes which defendants in one state gave to an intermediary which dumped them in another state. The court used “common sense” (i.e., reasonableness) to find that, “[a]s other courts have recognized, ... where a defendant deals in such inherently dangerous products, a lesser showing than is ordinarily required will support jurisdiction.” O‘Neil, 682 F.Supp. at 714, n. 1.
There is even doubt whether the State of California parole board and parole officers, in their official capacities, have any personal jurisdiction defense under the fourteenth amendment‘s due process clause, which protects “persons.” Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), held that neither a state nor state officials acting in their official capacities are persons for purposes of
Arizona should assert its regulatory interest in this case and take jurisdiction, it appearing, at the least, that gross negligence, if not intentional nonfeasance, is clearly at issue with catastrophic effects in Arizona. The immunity California conferred upon itself for such conduct should not be visited upon Arizona residents. Unaccountability breeds irresponsibility, a standard that Arizona has rejeсted. That neither California nor the federal government has seen fit to afford a remedy to a problem created by an arrogant bureaucracy should not leave Arizona victims remedyless in the name of serving federalism, nor should common sense and justice be frustrated.
If the law says that victims of a highly-dangerous, out-of-state parole violator cannot find redress in their home state against his grossly negligent keepers, I find myself concurring with Mr. Bumble: If the law says that, then the law is “a аss.”2 For the reasons given, I would reverse the summary judgment.
Notes
(1) A state has power to exercise judicial jurisdiction over an individual who has done, or has caused to be done, an act in the state with respect to any cause of action in tort arising from the act.
Appellants point out that “[o]ne cannot defend a suit for damages caused by an uncontrolled vicious animal by claiming it was the ‘unilateral’ act of the animal ... The law is clear ... that the damage is proximately caused by the failure to control and the animal is not the source of independent, intervening cause.” See Dobbs, Keaton & Owen, Prosser & Keeton on Torts § 76 (5th ed.1984).A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewherе with respect to any cause of action arising from these effects unless the nature of the effects and of the individual‘s relationship to the state make the exercise of such jurisdiction unreasonable.
Charles Dickens, Oliver Twist, Chapter 51.