(dissenting).
{30} I respectfully dissent. In holding that the district court lacked personal jurisdiction over the Diocese of Norwich, I believe the majority has taken a more restrictive view of jurisdiction than our cases require on these facts. For the following reasons, I would affirm the Court of Appeals.
{31} Because both the “transaction of business” and “tortious activity” strands of long-arm jurisdiction have been conflated with the due process inquiry in New Mexico,' see Majority Opinion ¶¶ 7-8, I am not certain that we need to examine them separately from each other or the ultimate constitutional inquiry. To do so would seem contrary to the view of personal jurisdiction that we have taken in the past.
{32} For example, in our most recent case on this issue we noted that,
Because we have interpreted the long-arm statute as extending our personal jurisdiction as far as constitutionally permissible, it is not necessary to determine whether the [defendant] transacted business within New Mexico in any technical sense. When the state courts have construed the state long-arm statute as being coextensive with the requirements of due process, “the usual two-step analysis collapses into a single search for the outer limits of what due process permits.”
Fed. Deposit Ins. Corp. v. Hiatt, 117 N.M. 461, 463, 872 P.2d 879, 881 (1994) (citation omitted) (quoting Forsythe v. Overmyer, 576 F.2d 779, 782 (9th Cir.1978)). Under this view, the sole inquiry is what due process allows. Nevertheless, it may be helpful in conducting that inquiry to separate the Diocese of Norwich’s contacts into categories, as the majority has done.
{33} The Court of Appeals listed the following acts as sufficient to conclude that the Diocese transacted business within New Mexico:
(1) intentionally sending Father Bissonnette to Via Coeli, paying for his room, board, and other expenses associated with his stay at Via Coeli; (2) authorizing his privileges and punishment while he was in New Mexico; (3) monitoring his progress at Via Coeli; (4) making Father Fitzgerald the Diocese’s agent for purposes of monitoring his period of suspension and lifting the disciplinary suspension at his discretion; and (5) using the Servants as intermediaries in obtaining work for him outside of Connecticut.
Tercero v. Roman Catholic Diocese, 1999-NMCA-052, ¶ 17, 127 N.M. 294, 980 P.2d 77. The evidence of these actions was sufficient to support jurisdiction on the basis of the Diocese’s “transaction of any business within” New Mexico. NMSA 1978, § 38-1-16(A)(1) (1971).
{34} As noted by the Court of Appeals, the Diocese “us[ed] the Servants as intermediaries in obtaining work for [Father Bissonnette] outside of Connecticut.” Tercero, 1999-NMCA-052, ¶ 17, 127 N.M. 294, 980 P.2d 77. In September of 1964, the Vicar General of the Diocese of Norwich informed Father Bissonnette by letter that he would never work in that diocese again. That letter also stated,
Bishop Hines recommends that through your Superior, Father Fitzgerald [of Via Coeli], you seek a Benevolent Bishop for whom you could work a year or two. During this period, through your zeal for souls and great love for God, your adoptive bishop would become convinced that you are a definite asset to his diocese. After that, your procedure would be to seek incardination in that diocese.
Father Bissonnette complied with this letter and, with Father Fitzgerald’s permission, found a job in Santa Fe. The majority opinion notes that the Diocese never directed Via Coeli to find a Benevolent Bishop for Father Bissonnette. The Diocese, did, however, encourage Father Bissonnette to find a Benevolent Bishop “through [his] Superior, Father Fitzgerald.” It was at this job that the alleged abuse took place. From this evidence, a reasonable jury could have concluded that the Diocese used Via Coeli as an agent to find work for Father Bissonnette— who was still a member of the Diocese of Norwich through the time of the alleged abuse — and this directly led to the cause of action asserted by Plaintiff. Given that we have equated the transaction of business with the due process standard of minimum contacts, I would conclude that the Diocese’s actions were sufficient to say that it had transacted business in New Mexico.
{35} Even if there was a delay from the time the Diocese ceased transacting business in New Mexico to the time of the conduct that gave rise to this lawsuit, we need not hold that the cause of action did not “arise from” the transaction of business in New Mexico. See Majority Opinion ¶ 15. We have said that the cause of action arises from the transaction of business if it “lies in the wake” of the defendant’s in-state activities. State Farm Mut. Ins. Co. v. Conyers, 109 N.M. 243, 245, 784 P.2d 986, 988 (1989). The alleged abuse by Father Bissonnette “lies in the wake” of the Diocese’s actions, specifically in placing him in New Mexico and encouraging him to find a job outside of Connecticut through Via Coeli. A reasonable jury could conclude that there was a direct causal link between the Diocese’s transaction of business with Via Coeli in New Mexico and Plaintiffs injury, despite the passage of time. I therefore conclude that Plaintiff made a prima facie case that the Diocese transacted business in New Mexico, and that this cause of action arose from that jurisdictional contact.
{36} The majority opinion does not appear to foreclose the conclusion that there was at one time an agency relationship between the Diocese and Via Coeli that could constitute transacting business on the part of the Diocese. The majority concludes, however, that any such relationship ended long before the alleged abuse occurred and thus cannot be the basis of jurisdiction. Majority Opinion ¶¶ 13-15. While this is one view of the evidence presented, and even a reasonable one, it is not the only permissible view a jury could take. Despite having been told that he would not work in Connecticut again, Father Bissonnette was still a member of that Diocese as late as 1968. From this fact, it is reasonable to conclude that Via Coeli continued to act for the benefit of the Diocese who, after all, continued to pay it for its services. I am persuaded that Plaintiff put forth enough evidence to make a prima facie case that the agency relationship led to the alleged abuse, and that as a result of the Diocese’s repeated and purposeful contacts with Via Coeli and New Mexico, jurisdiction is statutorily and constitutionally appropriate.
{37} Alternatively, I conclude that the Diocese of Norwich engaged in tortious conduct in New Mexico for two separate reasons. First, I agree with the Court of Appeals when it concluded that there is sufficient evidence that the Diocese committed a tort in New Mexico on the basis of Via Coeli’s alleged negligent supervision of Father Bissonnette. “Any person ... who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself ... to the jurisdiction of the courts of this state .... ” Section 38-l-16(A) (emphasis added). On the basis of the correspondence from Via Coeli and the Diocese of Norwich, and through the affidavit of Father Thomas P. Doyle, Plaintiffs expert on canon law and the Church hierarchy, a reasonable jury could have concluded that the Diocese appointed Via Coeli as its agent to determine when, and whether, Father Bissonnette could again practice as a priest. I agree with the Court of Appeals that, although the ultimate determination of the existence of an agency relationship for purposes of tort liability is to be left to the trier of fact, Plaintiff made a prima facie case that Via Coeli, acting as the Diocese’s agent, was negligent in its supervision of Father Bissonnette, and that the Diocese thereby submitted itself to the jurisdiction of New Mexico courts. Tercero, 1999— NMCA-052, ¶ 2, 127 N.M. 294, 980 P.2d 77.
{38} Second, I believe that we can attribute tortious activity to the Diocese based on its failure to control or monitor Father Bissonnette’s activities or warn New Mexico parishioners of his propensities. The Court of Appeals opinion alluded to two cases from other jurisdictions that so held, but did not decide the jurisdictional question on that basis. See id. ¶ 25; John Doe 1-22 v. Roman Catholic Bishop of Fall River, 509 N.W.2d 598 (Minn.Ct.App.1993); John Does 1-9 v. CompCare, Inc., 52 Wash.App. 688, 763 P.2d 1237 (1988). In each case an incardinating diocese sent a priest to a diocese in another state for treatment, paid for that treatment, communicated extensively with the priest and the treatment center, revoked the priest’s ability to get a job within the incardinating diocese, and was informed of their new employment at which place each priest was alleged to have molested the plaintiffs. CompCare, 763 P.2d at 1239-41; Fall River, 509 N.W.2d at 599-600. In each ease the forum court found that asserting jurisdiction over the incardinating diocese was consistent with their long-arm statutes, which are substantially similar to our own, and with due process.
{39} In CompCare, the court found jurisdiction over the incardinating diocese on the theory of its negligent supervision of the priest and its failure to warn the priest’s subsequent employers. CompCare, 763 P.2d at 1241. The court rejected the argument that the priest’s misconduct was beyond the scope of the employment relationship because it did not arise from priestly activities: “The Diocese’s argument ignores the scope of the relationship which existed between the Diocese and its priest. The duty of obedience which [the priest] owed the Diocese encompassed all phases of his life and correspondingly the Diocese’s authority over its cleric went beyond the customary employer/employee relationship.” Id. at 1242 (citing Code of Canon Law, Canons 265, 273, 290, 1333, 1350, 1395 (1985)).
{40} The court in Fall River similarly found that plaintiffs had made a prima facie case of tortious activity within the forum state on the theories of negligent supervision and failure to warn. The court held that the exercise of jurisdiction was appropriate because the diocese had sufficient minimum contacts with Minnesota:
In the context of products liability law, use of an intermediary and ignorance of the ultimate destination of a product does not shield a manufacturer from long-arm jurisdiction. Similarly, the Servants of the Holy Paraclete here are alleged to have acted at the behest of Fall River. Fall River’s authorization of [the priest’s] treatment at Via Coeli, acceptance of responsibility for his expenses, request to be informed of [his] progress, and grant of permission for [his] assignment to parish work, manifest an ongoing relationship between Fall River and [the priest], with Via Coeli acting as an intermediary.
Fall River, 509 N.W.2d at 601 (citation omitted). A subsequent case has described Fall River as applying a “stream-of-commerce theory” of personal jurisdiction to a foreign incardinating diocese. Bergherr v. Sommer, 523 N.W.2d 17, 20-21 (Minn.Ct.App.1994). That theory seems to me to be particularly appropriate in this case.
{41} I do not think that the “special relationship” that can be the premise of liability for failing to control Father Bissonnette or to warn New Mexico parishioners is limited to one of agency. See Majority Opinion ¶25. The majority opinion cites to the Restatement (Second) of Torts § 315 (1965) for the proposition that a special relationship is required to give rise to a duty to control the acts of a third person. The Comment on Clauses (a) and (b) to that section states, “The relations between the actor [here, Norwich] and a third person [here, Father Bissonnette] which require the actor to control the third person’s conduct are stated in §§ 316-319.” Nothing in this list of examples leads me to conclude that the relationship is limited to one of agency. Section 319 provides, as an example of that special relationship, “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing' such harm.”
{42} Father Doyle’s affidavit explains why, under canon law, the Diocese of Norwich has taken charge of Father Bissonnette. Based on the correspondence and actions of the Diocese, as they are explained by that affidavit, a jury could determine that the Diocese expected loyalty and obedience from the Father, and in return provided a lifelong guarantee that it would provide adequate means of livelihood and social welfare, whether or not that would be accomplished within the geographic boundaries of the Diocese. See CompCare, 763 P.2d at 1242. The correspondence between Father Bissonnette and the Diocese of Norwich shows the degree of control the latter did in fact exert over the former. Examples of this control included: allowing Father Bissonnette to return to New England to visit family, but preventing him from returning to Connecticut; granting him permission to recite the Divine Rite in English; granting him permission for a return to Via Coeli after his stay in Minnesota; and approving his expressed desire to seek incardination in the Archdiocese of Santa Fe. A jury could find from this evidence that the Diocese took charge of Father Bissonnette and thereby had a duty to control him, or at the very least to warn New Mexico parishioners about his propensities. I would therefore conclude, consistent with CompCare and Fall River, that Plaintiff made a prima facie case that the Diocese had failed in that duty and thereby committed a tortious act within the State of New Mexico.
{43} The majority concludes in ¶27, supra, that canon law does not impact the analysis and that it is the acts of the Diocese that must support jurisdiction. I agree that the Diocese’s actions must support jurisdiction. For that determination, however, canon law and Father Doyle’s affidavit about its effect help explain and give context to the Diocese’s actions. For example, Father Doyle explains why the incardinating Diocese that fired a priest would still list him as one of its members and still assert control over him. This understanding of canon law would allow a trier of fact, perhaps impressed with the analogy to a typical employer-employee relationship, to understand why the parties behaved as though the Diocese still exerted control over Father Bissonnette. The actions of the Diocese, as explained and contextualized by canon law and Father Doyle’s expertise-in that regard, do provide a basis for jurisdiction over it.
{44} Viewing these cumulative contacts as a whole, as I think our cases instruct us to do, it is within the “outer limits of what due process permits” to assert jurisdiction over the Diocese of Norwich. Our eases have described these outer limits by reference to cases from the United States Supreme Court. Thus, in Hiatt we noted that the minimum contacts with the forum required by due process must be significant enough that the assertion of jurisdiction over the out-of-state defendant would not offend “traditional notions of fair play and substantial justice.” Hiatt, 117 N.M. at 463, 872 P.2d at 881 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). That case also noted that “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 464, 872 P.2d at 882 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). Finally, we emphasized that it is essential in each ease “that [the defendant] should reasonably anticipate being haled into court there,” Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)), although we cautioned that “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” Id. (quoting World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 580).
{45} In this case Plaintiff put on evidence that the Diocese of Norwich incardinated a priest, and thus assumed a life-long duty to provide for him should he ever become destitute. Rather than allow that priest to cause more harm to parishioners in Connecticut, and rather than excardinate him or allow him to become destitute, the Diocese sent him to New Mexico for treatment and suspended him a divinis. See Majority Opinion ¶ 2. The Diocese delegated to Via Coeli, the treatment center in New Mexico, the decision to lift the suspension. The Diocese paid for his stay and treatment in New Mexico. The Diocese maintained communication with Father Bissonnette and Via Coeli in New Mexico; our record contains several letters from the Diocese sent to New Mexico, monitoring Father Bissonnette’s progress, making decisions concerning his day-to-day* life, and deciding where his future would lie. The Diocese recommended that, rather than return to Connecticut where his past was well known, he seek employment elsewhere through his superior at Via Coeli. Under these facts, I conclude that the Diocese’s contacts with New Mexico were substantial, that they were purposeful, and that the Diocese could reasonably foresee being haled into a New Mexico court on account of the dangerous instrumentality it sent to this state. I therefore conclude that it does not offend due process to assert jurisdiction over the Diocese.
{46} By way of comparison, we found jurisdiction to be constitutionally appropriate in Kathrein v. Parkview Meadows, Inc., 102 N.M. 75, 691 P.2d 462 (1984), when the defendant, operating an alcoholism treatment center in Arizona, had advertised for two years in the yellow pages of an Albuquerque telephone directory, had solicited referrals from the Albuquerque chapter of the National Council on Alcoholism, mailed a brochure to the plaintiff, and encouraged her by telephone to attend a program at their center. The alleged harm took place at the center in Arizona. Kathrein, 102 N.M. at 76, 691 P.2d at 463. Similarly, in Conyers we held that jurisdiction was appropriate over a defendant in an insurance dispute arising from an automobile accident in Nevada, where the defendant had lived briefly in New Mexico three years prior to the accident, and had purchased insurance in New Mexico while living here. Conyers, 109 N.M. at 244, 784 P.2d at 987. In these two cases the foreign defendants’ contacts to New Mexico were somewhat attenuated at the time of the alleged harm, and yet we found personal jurisdiction acceptable. These cases articulate a broad standard of due process; I am persuaded by them that it would not offend “traditional notions of fair play and substantial justice” to assert jurisdiction over the Diocese of Norwich.
{47} For the foregoing reasons, I respectfully dissent from the majority opinion. Our cases have conflated the constitutional due process standard with the relevant statutory standards. That due process standard is quite broad, and I conclude that it would allow New Mexico to assert personal jurisdiction over the Diocese of Norwich, either on the basis of the business transacted or tortious conduct within New Mexico. Assertion of jurisdiction over the Diocese seems consistent with our prior cases, and with virtually identical cases from other jurisdictions. I would therefore affirm the Court of Appeals.
I CONCUR: JOSEPH F. BACA, Justice.