Medical whistleblower canary notes newsletter 24 constitutional law december 2007 vol. 2 issue 12


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Medical whistleblower canary notes newsletter 24 constitutional law december 2007 vol. 2 issue 12

  1. 1. Medical WhistleblowerDecember 2007Volume 2 Issue 12 Medical Whistleblower’s Canary Notes Inside this issue: The Bill of Rights 2 What is a Constitutionally Protected Right? The Right to Pursue a 2 Business or Occupation There is a United States Constitution but there is also a Constitution for each state. Often the The Fourteenth 3 Amendment protections are even greater under the State Constitution than under the Federal Constitution. So The First Amendment 3 it is wise to consult both before deciding which would be best to cite in your legal case. There State or Federal Court 4 also is often a State Bill of Rights as well as the United States Bill of Rights at the Federal level. A Federal Constitutional Right is a right guaranteed by the United States Constitution to the citizens of the United States and so guaranteed as to prevent legislative interference with that right. Con- stitutional Rights are not immune to governmental regulation but a Constitutional Right can not be imposed on or destroyed under the artificial guise of being regulated. Therefore the United States We become human only in the “ Constitution only permits reasonable regulation of an individual’s actions and a person’s beliefs are not subject to regulation by the state. Constitutional rights are guaranteed to rich and poor, public company of other human beings. officers and private persons, children and adults, the guilty and the innocent, doctors and patients,And this involves both opening our prison inmates and alleged mentally incompetent persons. One must be careful not to confuse a hearts and giving voice to our political or social interest with a guaranteed constitutional rights. If a law imposes upon fundamen- deepest convictions.” tal constitutional rights, by penalizing those who choose to exercise those rights, then the law is Paul Rogat Loeb itself patently unconstitutional. Deprivation of one person’s rights has a chilling effect on others trying to assert their constitutional rights. A deprivation of a constitutionally protected liberty is not “a little bit unconstitutional”, it is unconstitutional period. Therefore one does not have to have a complete deprivation of a constitutional right for there to be a constitutional violation of a person’s rights. The abridgement of a constitutional right can be intentional or incidental, but the real question of law is whether the effect of a person’s constitutional rights has an effect that is unnecessary and therefore excessive. Any action by the state that results in preventing the citizen to freely exercise a valid constitutionally guaranteed right can be a violation of constitutional magni- tude even without the complete deprivation of that constitutional right. The state statute can not be so unnecessarily broad that it stifles fundamental personal liberties. Therefore a state in regu- lating a person’s right to have a medical license and to be able to pursue their chosen profession to earn a livelihood, must demonstrate that the state statute serves a compelling state interest and that the state’s objectives can not be achieved by any less restrictive means.
  2. 2. Page 2 Medical Whistleblower’s Canary Notes Volume 2 Issue 12 Bills of Rights When considering whether a particular case is perhaps a Constitutional Question, one may wish to consider the State’s Bill of Rights. Most State Constitutions also contain a Bill of Rights which are intended to protect citizens in their most fundamental rights from governmental transgressions of abuse of official power. Many States recognize so-called “Natural” rights (as does the Fourteenth Amendment). These “fundamental rights” are the freedom of religion, the freedom of assembly and of association, and the safe guarding of a person in his or her life, liberty or the pursuit of happiness. In many states the right to contract and the right to own property have been designated inherent rights. The State’s Bill of Rights is not designed to protect the state’s citizens from the invasion of their constitutional rights by individuals. The State’s Bill of Rights seeks to protect the citizen’s right to enjoyment of life, liberty and property without arbitrary governmental interference. The State Bill of Rights establishes certain legal principles and places them above political controversy and al- lows the State court to protect the people of the State from excesses of the exercise of power by State governmental officials. The court will find any governmental action which is in violation of rights declared in a Bill of Rights as void, so that the provisions of a Bill of Rights are self-executing. The United States Constitution provides a legal standard in the area of the protection of individual “Acquire knowledge. It rights and civil liberties and the State Courts are obligated to provide as much protection to their enables its possessor to citizens as the United Supreme Court has provided by it’s interpretation of the Federal Bill ofdistinguish right from wrong; Rights. Some State Bills of Rights actually afford more protection than the Federal lights the way to heaven; it is our friend in the dessert, our society in solitude, our companion when friendless; The Right to Pursue a Business or Occupation it guides us to happiness; itsustains us in misery; it is an ornament among friends, The Constitution protects the right to earn a livelihood by following the ordinary occupations of and an armor against life. This is a protected right guaranteed by the Fourteenth Amendment and is considered to be a enemies.” fundamental natural, inherent, and inalienable right. The Supreme Court has recognized that the Muhammad (570-632) right to follow a chosen profession free from unreasonable governmental interference comes within the "liberty" (and "property") concept of the Fifth Amendment. It is one of our most valuable rights. A person’s business, occupation or calling is sometimes referred to legally as a “property” right. This property right extends to those common businesses and ordinary callings of life and are in- cluded in the right to liberty and the pursuit of happiness. However, one’s livelihood can also be a Liberty right as well. The United States Supreme Court has held that a persons interest in his or her reputation is not by itself alone a “Liberty” interest. However, when one’s reputation is closely linked with a wrongful discharge from employment then it is sufficient enough to invoke the proce- dural protection of the due process clauses of the Fifth and Fourteenth Amendments. So the Su- preme Court considers whether the “Liberty” interest in one’s reputation is a factor along with other Constitutional Rights and thereby Due Process has been violated under the Fourteenth and Fifth Amendments. So the wrongful discharge of an experienced Surgeon who combines a defama- tion claim with a wrongful termination claim thus comes under scrutiny by the court for violation of Civil Rights. Defamation of a Doctor can include derogatory statements against his/her good name, reputation, honor, or integrity. Charges such as immorality, dishonesty, alcoholism, disloyalty, com- munism, or subversive acts, or a state imposed a stigma or other disability may foreclose opportuni- ties for the individual and thus be a deprivation of that individual’s “Liberty” interest in his/her repu- tation.
  3. 3. Medical Whistleblower’s Canary Notes Volume 2 Issue 12 Page 3The Fourteenth AmendmentOne of the most important Amendments to the United States Constitution is the Fourteenth Amendment.The Fourteenth Amendment puts limitations on the State’s exercising of power and prohibited the states from “Show me theabridging the privileges or immunities of citizens of the United States, or depriving persons of life, liberty, or stone that theproperty without due process of law, and from denying to any the equal protection of the laws. The Supreme buildersCourt was quick to point out to the States through it’s decisions that the Fourteenth Amendment safe- rejected:guarded civil rights from infringement by state action, because a denial of them would be a denial of due proc-ess of law. That is the cornerstone.”Section 1 of the Fourteenth Amendment states: "All persons born or naturalized in the United States, and sub- Jesusject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; (c.6 B.C.E. –30)nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to anyperson within its jurisdiction the equal protection of the laws." Section 5, which is the final provision, states:"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."To determine if a right is actually a right under the Due Process Clause of the Four-teenth Amendment one needs to find it to be a fundamental principle of liberty andjustice and the interference of that principle actually curtails the inalienable rights of acitizen and prevents the essential due process of a free government. The Due Proc-ess Clause of the Fourteenth Amendment requires that state action, through oneagency or another, shall be consistent with the fundamental principles of liberty andjustice which lie at the base of all our civil and political institutions.The First AmendmentThe First Amendment is our guarantee to the free exercise of one’s religion, free speech and freedom of as- Religious traditions stress thesembly. The First Amendment to the United States Constitution states: "Congress shall make no law respect- importance of listening to theing an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or spirit within, to guide ourof the press; or the right of the people peaceably to assemble and to petition the Government for a redress of personal choices. … The ancientgrievances." The intent of the amendment was to curtail the power of Congress to interfere with an individuals Jews spoke of ruah, the spark offreedom to believe, to worship, and to express himself or herself in accordance with the dictates of his or her life or breath of God which gaveown conscience. Another effect of the First Amendment was to protect unpopular persons and their ideas insight, understanding andfrom suppression and retaliation from those who are intolerant and hateful. The First Amendment guarantees physical sustenance.”that each person should have the protected right to decide for himself or herself the ideas and beliefs deservingof expression and allows for the adherence to one’s own belief system. Any governmental body that requires Paul Rogat Loebthe citizen to believe in a certain way that is contradiction of their own faith stifles the right of freedom of re- Soul of a Citizen, Living withligion and thereby violates the First Amendment. Although the fundamental constitutional rights and guaran- Conviction in a Cynical Timetees, including those in the First Amendment, are not absolutely unrestricted, it still shows the founder’s com-mitment to protect free speech and to curtail governmental regulation and control. Thus judicial scrutiny ofthe actions of the government acts as a means to enforce the Constitutional constraints. The guarantee of aconstitutional right ensures the citizen the privilege of having such a right judicially declared and protected.
  4. 4. Medical Whistleblower The information contained through the Medical Whistle- blower Canary Notes Newsletter is provided for general information only. The information provided by the MedialDr. Janet Parker Whistleblower Canary Notes does not constitute legal orP.O. Box C professional advice nor is it conveyed or intended to be con-Lawrence, KS 66044 veyed in the course of any adviser-client discourse, but isPhone: 360-809-3058 intended to be general information with respect to commonFax: None issues. It is not offered as and does not constitute legal orE-mail: medical advice or opinion. It should not serve as a substitute for advice from an attorney, qualified medical professional, social worker, therapist or counselor familiar with the factsWe are on the Web! of your specific situation. We encourage you in due to seek additional information and resources before making any decision. We make no warranty, express or implied, concerning the accuracy or reliability of the content of this newsletter due to the constantly changing nature of the legalSupporting the Emotional Health of All Whistleblowers and medical aspects of these issues .and their Friends, Supporters and Families.Will the Case be Decided in State or Federal Court ?The Federal Court can decline to hear a case, by stating that there are unsettled ques-tions that need to be deferred to the State Court. These are the circumstances underwhich the Federal Court may abstain and send the case back to the State Court.(1) “Pullman Abstention” This is when a federal court is presented with a federal con-stitutional question concerning the validity of state law, and perhaps the state court willeliminate or alter the law so that the constitutional question does not need to be decidedin Federal Court.(2) “Burford Abstention” This is when there are policy problems of public importancewhich are more important than the case to be decided and a Federal Court review of thelegal question will be disruptive of the state’s efforts to establish a coherent policy in re-gards to a matter of significant public concern.(3) “Younger Abstention” This is where there is a pending state law enforcement pro-ceeding, and the federal court does not intervene by injunctive or declaratory relief.(4) “Colorado River Abstention” This is where a federal court exercises discretion todelay proceedings on its docket pending the outcome of a similar suit instituted earlierin state court.