Ermoian v . Desert Hospital 152 Cal. App 4 th 475, 61 Cal Rptr 3d 754
13 Cal Jur 3d
Transcript of 13 Cal Jur 3d
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13 Cal Jur 3d
Constitution
Right of Privacy
Property RightsRight to Travel
Liberty
1. Constitution
The fundamental purpose of a constitution are... ...protect the private rights of individuals.
13 Cal Jur 3d 1, p. 20
...a constitution is a written instrument enacted by the direct action of the people(2),
establishing the form of government and defining the powers of the several departments, thus
creating afundamental law that is absolute and unalterable except by the authority from which
it emanated(3).
The California Constitution is a solemn compact, deliberately and freely entered into by a
free people among themselves, by which they limit the powers of their agents ,... ...limiting,
classifying, and directing the powers of the different department of the government.(4)
The Code of Civil Procedure declares that the organic law is the constitution of government
and is altogether written. Other written laws are denominate statutes. The written law of
this state is contained in the constitution and the statutes,...
Ibid. 1, p. 21
...federal and state constitutions serve to limit as well as define the powers of government(9).
Ibid 2, p. 22
...the California Constitution provides that government is instituted for the protection,
security, and benefit of the people(14).
Ibid. 2, p. 23
When the United States Constitution and first state constitutions were framed, it was thought that
a constitution merely outlined a government, provided for certain departments and offices and
defined their functions, secured some absolute and inalienable rights to the citizens, and left allmattes of administration and policy to the departments it created(26).
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Save as to the assurances of individual rights against the government, the direct operation
of the constitution was on the government only. And such assurance were themselves in fact
but limitations on the governmental powers.
Ibid. 4, p. 25
The California Constitution provides that all political powers is inherent in the people and thatgovernment is instituted for the protection, security and benefit of the people(76).
The Declaration of Rights differs from the great English charters in that it is not an assurance to
the individual from the sovereign, but is a command and a limitation of power on state
officials by the people who created the formal government. And it must be remembered that in
construing the declaration of rights there is no presumption that the government or its officers
will act justly. These sections imply possible oppression and are designed to enable the
victim to assert his or her rights, even as against the government(78).
Ibid. 231, p. 506
... the rights guaranteed by the California Constitution are not dependant on those guaranteed bythe United States Constitution;(18)...
Ibid. 231, p. 510
- 237. Right of Privacy -
The state constitution provides that all persons have the right to pursue and obtain privacy(14).
The California constitutional guarantees is motivated by concern over contemporary societys
accelerating encroachment on personal freedom and security caused by increased surveillance
and data collection(18). It exists to prevent governmental snooping, to inhibit the overly broad
collection and retention of unnecessary personal information(17)...
Ibid. p. 527
...the right of privacy had been recognized as a fundamental right in this state.
...the United States Supreme Court recognizes that a right of personal privacy, or a guaranty of
certain areas or zones of privacy, does not exist under the Constitution, and that the roots of that
right may be found in the First Amendment, in the Fourth and Fifth Amendments, in the
penumbras of the Bill of Rights, in the Ninth Amendment,...
Ibid. p. 528
...right of privacy guaranteed by the state constitution is much broader than the privacyguaranteed by the federal Constitution(23).
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...it is the right of a person to lead his or her private life without intrusion the government. Thus,
prior to the adoption of the state constitutional provision, it was said that whenever and
individual may harbor a reasonable expectation of privacy, he or she is entitled to be free from
unreasonable governmental intrusion(25).
Ibid. p. 529
Only personal rights that can be deemed fundamental or implicit in the concept of ordered
liberty are included in the guaranty of the right of personal privacy;...
Ibid. p. 534
...any such intervention be justified by a compelling interest(35). And such infringement must be
made by the least restrictive alterative necessary to facilitate the compelling state interest(36).
Ibid. p. 536
The right of privacy provided by the state constitution(42) does not apply to corporations(43).
Ibid. p. 537
- 238. Right to Travel -
The nature of the federal union and of constitutional concepts of personal liberty unite to require
that all citizens be free to travel throughout the length and breadth of the United States
uninhibited by statutes, rules, or regulations that unreasonably burden or restrict this
movement(42).
And the constitutional right to travel between the states implies a correlative constitutional right
to travel within a state(46).
Ibid. p. 538
- 239. Property Rights -
This constitutional provision refers to the right to acquire and possess the absolute and
unqualified title to every species of property recognized by law, with all rights incidental
thereto(55).
Ibid. p. 540
The right of protecting property is not the simple right to protection by individual physical force,
but is the right to protect property by the law of the land and the force of the body politic(57).
Both state(58) and federal(59) constitutions prohibit the state from depriving a person of
property without due process of law(60).
Thus, before a person may be deprived of any significant interest, he or she must be
afforded notice and an opportunity for a hearing(62).
Ibid. pgs. 541 - 542
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Both the state(66) and federal(67) constitutions also prohibit the taking of private property for
public use without just compensation(68).
Ibid. p. 543
B. LIBERTY [243 - 245]
Summary
The right to liberty consists ofthe right to be free from arbitrary personal restraint as well as the
right to do such acts as a person may judge best for his interests, and the right of a person to be
free in the enjoyment of all his faculties (243).
Ibid. p. 552
- 243. In general -
Personal liberty is a fundamental interest, second only to life itself, protected under both the
California and the United States Constitutions(17). The therm liberty as used in the state and
federal constitutions(18) consists partially ofthe right to be free from arbitrary personal
restraint(19). For example, the right of a citizen to drive on a public street with freedom
from police interference, unless he or she is engaged in suspicious conduct associate in some
manner with criminality, is a fundamental constitutional right(20). But liberty means much
more than freedom from restraint. It means not merely the to go where one chooses, but also to
acts as one may judge best for his or her interests, not inconsistent with the rights of others.
It embraces the right of the individual to be free to enjoyment of all his or her faculties; to be
free to use them in all lawful ways; to follow such pursuits as are best adapted to his or her
faculties and will give him or her the greatest enjoyment; to live and work where he or she will;
to earn a livelihood by any lawful calling, and for that purpose to enter into any lawful contract.Constitutional protected liberty includes the right to acquire useful knowledge,... ...and generally
to enjoy those privileges long recognized at common law as essential to the orderly pursuit of
happiness by free people(22). Other rights, peripheral to those in the Bill of Rights of the federal
Constitution, but protected by various interpretations of the general provisions of the Bill of
Rights, such as the right of privacy(23), the right to travel(24), and freedom of
association(25), may also find part oftheir foundation in the basic right of liberty(26).
Ibid. pgs 553 - 554
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ARBITRARY. What depends on the will of the judge, not regulated or established by law.
Bacon (Aphor. 8) says, Optima lex quae minimum relinquit arbitrio judicis et (Aph. 46) optimusjudex, qui mi nimum sibi
2. In all well adjusted systems of law every thing is regulated, and nothing arbitrary can be
allowed; but there is a discretion which is sometimes allowed by law which leaves the judge free
to act as he pleases to a certain extent. See Discretion
Bouviers Law Dictionary, 1856
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ARBITRARY PUNISHMENTS, practice. Those punishments which are left to the decision of
the judge, in distinction from those which are defined by statute.
Bouviers law Dictionary, 1856
ARBITER. One who, decides without any control. A judge with the most extensive arbitrary
powers; an arbitrator.Bouviers Law Dictionary, 1856
DUE PROCESS
Due process of law" means, broadly speaking, that before property of a person may be taken
by the state, he must be given notice of the proceedings which may terminate in the taking,
and be given opportunity to be heard.
People v. One 1950 Mercury Sedan, Engine No. 50LA40896M, 1950 License No. 29B9130 (App.
2 Dist. 1953) 116 Cal.App.2d 746, 254 P.2d 666.
"Due process of law" does not necessarily mean that a person is entitled to a trial in a court
before he may be deprived of what may be equivalent to property rights, but does mean that an
orderly proceeding, adapted to the nature of the case, shall be accorded to the owner of
property, in which he may be heard, and where he may defend, enforce, and protect his
personal rights.
Gregory v. Hecke (App. 3 Dist. 1925) 73 Cal.App. 268, 238 P. 787.
"Due process of law" is the exact equivalent of the "law of the land" as used in the Magna
Charta, and, broadly speaking, means that before a man's life, liberty, or property may be
taken by the state, he must be given notice of the proceedings which may terminate in the
taking, and be given an opportunity to be heard in his own defense, the notice to be a realand reasonable one, and the hearing such as ordinarily or at least reasonably is given in similar
cases. Beck v. Ransome-Crummey Co. (App. 1919) 42 Cal.App. 674, 184 P. 431.
Substantive due process prohibits governmental interference with person's fundamental
right to life, liberty, or property by unreasonable or arbitrary legislation.
In re Marilyn H. (1993) 19 Cal.Rptr.2d 544, 5 Cal.4th 295, 851 P.2d 826.
In passing curative statutes, legislature cannot rise above federal and state constitutional
requirements that property cannot be taken from individual owner without due process of
law.
Litchfield v. Marin County (App. 1955) 130 Cal.App.2d 806, 280 P.2d 117.
Section 353, Evid Code is subject to the constitutional requirement that a judgement must be
reversed if an error has resulted in a denial of due process of law.
People v. Matteson, 61 C2d. 466 (1968)It's actually a 1964 case