Section 789

Citation: Section 789 (7)
Parent Document: Hale v. Morgan, 584 P.2d 512 (1978)
Jurisdiction: California (state)
Effective Date: 1978-09-28
Original Source: https://www.courtlistener.com/opinion/1160324/hale-v-morgan/ ↗

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(7) The due process clauses, federal and state, are the most basic substantive checks on government's power to act unfairly or oppressively. As such, they protect against infringements by the state upon those "fundamental" rights "implicit in the concept of ordered liberty." (Palko v. Connecticut (1937) 302 U.S. 319, 325 [82 L.Ed. 288, 292, 58 S.Ct. 149].) The United States Supreme Court, on several occasions in recent years, has on due process grounds overturned legislation or disapproved governmental action which substantively invaded protected rights of the person. (E.g., O'Connor v. Donaldson (1975) 422 U.S. 563, 565-577 [45 L.Ed.2d 396, 401-408, 95 S.Ct. 2486] [confinement of nondangerous person for mental illness, without treatment, violates due process]; Roe v. Wade (1973) 410 U.S. 113, 153 [35 L.Ed.2d 147, 177, 93 S.Ct. 705] [state law prohibiting all nontherapeutic abortions violates the "concept of personal liberty" founded in the Fourteenth Amendment]; Griswold v. Connecticut (1965) 381 U.S. 479, 484-485 [14 L.Ed.2d 510, 514-516, 85 S.Ct. 1678] [substantive right of privacy violated by prohibition on all *399 dissemination of contraceptive information].) The due process shield, while protecting life and liberty, of course, has similar application in the protection of property. Courts have consistently assumed that "oppressive" or "unreasonable" statutory penalties may be invalidated as violative of due process. (See, e.g., People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 642 [268 P.2d 723].) We therefore examine section 789.3 to determine whether, either as enacted or as specifically applied (Boddie v. Connecticut (1971) 401 U.S. 371, 379-380 [28 L.Ed.2d 113, 119-121, 91 S.Ct. 780]), the penalties therein authorized are reasonable and proper or arbitrary and oppressive.

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