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Full Case Name: GREENWAY v. NORTHSIDE HOSPITAL, INC. d/b/a Northside Hospital, et al.
While completely disoriented at a hospital, the plaintiff was asked by deputies to sign a form releasing his two yellow labs to animal control in the event of the plaintiff's demise. The plaintiff was allegedly informed that if he did not die, he could retrieve his dogs in 7 to 10 days; he therefore signed the form without reading the terms. Later, the nurse informed him that his dogs had been euthanized and plaintiff filed suit. The trial court granted all of the defendants' motions for summary judgment, so the plaintiff appealed. The appellate court found an issue of material fact existed towards all defendants and therefore concluded that the trial court erred in granting all motions for summary judgment.
371 Michael Greenway appeals from the trial court's order granting summary judgment to Northside Hospital (“Northside”), Sheriff Ted Paxton, Deputy Terry Roper, and NALAA Corporation (“NALAA”). He contends genuine issues of material fact exist with regard to the liability of each appellee for the euthanasia of his dogs while he was admitted as a patient at Northside. For the reasons explained below, we affirm the trial court's grant of summary judgment to Sheriff Paxton and reverse the trial court's grant of summary judgment to Deputy Roper, Northside, and NALAA.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9–11–56(c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Benton v. Benton, 280 Ga. 468, 470, 629 S.E.2d 204 (2006).
*373 Greenway testified that he could not believe he was being asked to sign the document “when I was so out of it,” and admitted that he ultimately signed it without reading the entire document. He was able to read the large type words “Owner Release Form” at the top of the form and acknowledged that someone told him the reason he was giving up ownership was his medical condition. Greenway testified that his signature is the only thing written by him on the form.
Based on information provided to him in the emergency room, Greenway testified that he believed his animals were going to the Humane Society and that, if he lived, he would be able to get them back within seven to ten days. At another point in his deposition, Greenway testified that the “[o]nly reason I turned over the dogs is because they told me I was dying.” He explained that he understood his animals were going to the Humane Society and that he would never have signed the form if he had known they would be taken to the pound.
At some point after he signed the form, Greenway received his glasses. He read the form, discovered that his animals could be euthanized, and “bells, whistles and everything went off” in his mind. Before he could do anything about what he had signed, he was sedated. When he woke up in a regular hospital room, he talked with the charge nurse about getting his dogs back. After she made some inquiries, she returned with tears in her eyes and informed Greenway that his dogs had already been euthanized.
Greenway testified that he holds the patient advocate responsible for the death of his dogs because the patient advocate contacted the police. He also testified that when the medical personnel volunteered information about the seven to ten day time period in which he could seek the return of his dogs, he expected them to provide him with correct information.
While the deputies and hospital personnel provided very different accounts of their interaction with Greenway, we must view the facts in the light most favorable to Greenway, the nonmovant, and we therefore summarize only portions of their deposition testimony. Northside's patient registration clerk testified that she completed admission paperwork **747 for Greenway and wrote “unable to sign” on his admission paperwork. Although she could not recall the specific reason he did not sign the paperwork, she acknowledged that it was possible he was unable to communicate with her.
*374 Northside's patient relations representative, Jeffrey Hancock, testified that he was called by a nurse, Nickie Stockel, who informed him that “[s]he had a patient in the emergency room who was concerned about the welfare of his pets and wanted to know if [he] could come over to the room.” When Hancock arrived, Stockel “introduced [him] to Mr. Greenway, told [him] what was going on, and said, do you think that we should call Animal Control or the Humane Society and see if there's some way they could help.” Hancock did not recall Greenway saying anything about not having fed his dogs. According to Hancock, Greenway denied having any friends or family or neighbors who could take care of the dogs. Hancock acknowledged that he did not look for any emergency contact information in Greenway's hospital records.
Hancock testified that he did not “know what the exact relationship is between Animal Control and Humane Society. The first point of contact is generally Animal Control.” At the time he talked with Stockel, he thought that “the Forsyth County Animal Control and the Forsyth County Humane Society [were] the same organization.” During his deposition, he repeatedly misspoke and said Humane Society when he intended to refer to Animal Control, and he admitted several times that he did not know if they were the same organization.
After his first meeting with Stockel and Greenway in the emergency room, Hancock returned to his office and called Forsyth County Animal Control. He admitted that Greenway never asked him to call Animal Control after their first meeting. After several conversations with Greenway and Animal Control about different options available to Greenway, Hancock “advised [Greenway] that the only option for Animal Control at this point was to pick the dogs up and for them to be turned over to Animal Control permanently.” He believed he said “Animal Control” to Greenway, but admitted that he “can't say for sure.” When Greenway “said he did not want to do that,” Hancock left the emergency room. A short time later, Stockel called and told him Greenway had changed his mind and wanted “to turn the dogs over to Animal Control.”[FN2] Hancock testified that he did not know what would happen to the dogs after they were permanently turned over to Animal Control.
Stockel testified that Greenway was not lucid when he first came into the emergency room, explaining that “[h]e would talk, and then he would go back out and then he would talk.” According to Stockel, *375 Greenway was concerned about his dogs and whether he had fed them, asked to speak to Hancock “for emotional support,” and asked Hancock to call the Humane Society to make sure his dogs were alive. She was certain that Greenway used the words Humane Society, not Animal Control. But, according to Stockel, the Humane Society and Animal Control are one entity.
Stockel testified that no one from the sheriff's department spoke with Greenway; she testified that “[t]he Humane Society, Officer Roper” spoke with Greenway about his dogs. She explained that she normally asks who is coming into one of her patient's rooms and testified that Deputy Roper told her, “my name is Officer Roper, I work with the Humane Society.” Her notes in Greenway's medical chart “reflect that Officer Roper worked for the Humane Society.” She admitted that she was not familiar with the document signed by Greenway.
The record shows that after Deputy Roper obtained the signed release from Greenway, he and Deputy Rogers went to Greenway's home where they found the dogs in the back yard. Deputy Roper testified that he did not notice whether food and water was available to the dogs, but the dogs appeared to be in good shape. A sheriff's department “field activity record” states that “[w]ith signed receipt, we entered house and obtained dogs. Took to shelter 1 male and 1 female yellow lab and released to shelter.” This report makes no mention of any aggressive behavior by the dogs, and Deputy Roper did not testify that the dogs were aggressive when he picked them up.
I, the undersigned, do hereby certify that I am the owner or duly authorized agent for the owner, of animal described above, that I do hereby give Forsyth County Animal Control, their agents, staff, or representatives full and complete authority to destroy and dispose of said animal in a humane manner and hereby release Forsyth County Animal Control from any and all liability for so destroying the said animal.
I understand the said animal may be euthanized (put to sleep) immediately upon my release of animal to Forsyth County Animal Control, if not considered adoptable because of health reasons, temperament, animal's age, lack of space, or if the animal has bitten someone or another animal, or has a history of biting, or any other reason.
If you have carefully read the information above, and your animal(s) has not bitten a human or another animal within the last ten (10) days or has a history of biting, and you have owned the animal for thirty days or more, you may want to consider the various rescue groups available.
When Green returned from his business trip, he learned the dogs had been euthanized and that the director of the pound, Mrs. Orr, had not been informed of his offer of $100 to ensure that Greenway's dogs would not be euthanized. According to Green, Mrs. Orr admitted that the dogs would “probably not” have been euthanized if she had learned about Green's conversation with the woman on the phone.
Greenway subsequently filed a suit against Northside, Forsyth County, and Dr. Lanier Orr DMV d/b/a Orr Animal Hospital. He subsequently obtained the trial court's permission to add Sheriff Ted Paxton and Deputy Terry Roper as defendants, and the trial court's order granting the motion to add them as parties notes that “Forsyth County is no longer a defendant in this case.” NALAA Corporation was subsequently substituted as a defendant in the place of Lanier Orr, DMV d/b/a Orr Animal Hospital.
Following discovery, all defendants moved for summary judgment. In his response to Northside's motion for summary judgment, Greenway asserted an ordinary negligence theory of recovery against the hospital in both his written brief and during the hearing on Northside's motion. The trial court granted the summary judgment motions of all defendants. It concluded that Northside could not be held liable under an ordinary negligence theory of liability[FN3] because: (1) Greenway had not asserted negligence in his complaint or amended complaint and (2) he could not establish proximate cause resulting from Northside's negligence even if he had asserted a negligence claim.
1. Greenway contends the trial court erred by granting summary judgment in favor of Sheriff Paxton and Deputy Roper based upon their immunity from suit for discretionary acts. It appears from his brief that Greenway is asserting that Deputy Roper can be held liable for ministerial acts, that no immunity exists for discretionary acts *378 performed with malice by Deputy Roper, and that Sheriff Paxton should be held vicariously liable for the conduct of Deputy Roper.
Whether a government official is entitled to official immunity is a question of law for the court to determine. Glass v. Gates, 311 Ga.App. 563, 575(2), 716 S.E.2d 611 (2011).
The doctrine of official immunity offers public officers and employees limited protection from suit in their personal capacity. Official immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.
(Citations, punctuation and footnote omitted.) Todd v. Brooks, 292 Ga.App. 329, 330(1), 665 S.E.2d 11 (2008). “The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” (Citation and punctuation omitted.) Vann v. Finley, 313 Ga.App. 153, 159(1), 721 S.E.2d 156 (2011).
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
**750 Todd, supra, 292 Ga.App. at 330(1), 665 S.E.2d 11. “Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.” (Citation, punctuation and footnote omitted.) Barnard v. Turner County, 306 Ga.App. 235, 238(1), 701 S.E.2d 859 (2010).
(a) Greenway contends that Deputy Roper's acts were ministerial based upon Deputy Roper's alleged testimony that “all his actions in regard to this situation were following the policy of Sheriff Paxton.” *379 A review of the deposition testimony cited by Greenway shows that Deputy Roper testified that he had conversations with police supervisors after the incident and he was informed that his actions were “within policy.” Deputy Roper also testified that he made the decision, on his own and as a matter of his own discretion, to provide the release form to Greenway to sign. There is no evidence that Deputy Roper was ordered or obligated to seek Greenway's signature on the release form. Based upon these facts, the trial court properly concluded Deputy Roper's “decision to ask [Greenway] to sign the release for his two dogs” was “discretionary” and one which required “Deputy Roper to exercise personal deliberation and judgment.” See Todd, supra, 292 Ga.App. at 330–331(1), 665 S.E.2d 11 (officer's decision to shoot bull during attempted impound discretionary act).
This is not the end of our analysis, however, as Greenway's complaint against Deputy Roper is not based solely upon Deputy Roper's decision to ask Greenway to sign the form—instead it also focuses upon the manner in which Deputy Roper executed that decision. In this case, Deputy Roper's act of handing the form to Greenway and asking him to sign it was ministerial; it was a “simple, absolute, and definite [act] ... requiring merely the execution of a specific duty.” (Citation, punctuation and footnote omitted.) Todd, supra, 292 Ga.App. at 330(1), 665 S.E.2d 11. The allegations that Deputy Roper exercised poor judgment in carrying out that act do not make the act the type of discretionary act protected by official immunity; they merely support an inference of negligence. See Hicks v. McGee, 289 Ga. 573, 577(1), 713 S.E.2d 841 (2011) (“The fact that appellants failed to [correctly perform a ministerial duty] cannot serve to change the nature of the [act] in any manner.”). Greenway's assertions that Deputy Roper told him, “Just sign this d* *n form,” and that Deputy Roper did so when he was “out of it” and “under medication” create genuine issues of material fact as to whether he breached a ministerial duty. The trial court therefore erred by granting summary judgment in Deputy Roper's favor based upon official immunity.
(b) Having found issues of fact precluding summary judgment in favor of Deputy Roper, we must now determine whether Sheriff Paxton may be held vicariously liable for Deputy Roper's conduct under the doctrine of respondeat superior. A sheriff may be held liable for a deputy's negligence only to the extent the county has waived sovereign immunity. Seay v. Cleveland, 270 Ga. 64, 65(1), 508 S.E.2d 159 (1998); Gilbert v. Richardson, 264 Ga. 744, 753–754(7), 452 S.E.2d 476 (1994). A county's sovereign immunity “may only be waived by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” (Citations, punctuation and footnote omitted.) *380 Smith v. Chatham County, 264 Ga.App. 566, 567(1), 591 S.E.2d 388 (2003). “A waiver of sovereign immunity must be established by the party seeking to benefit from the waiver.” (Citation and footnote omitted.) Id. In this case, Greenway points to no applicable statute waiving the county's sovereign immunity and has consequently failed to meet his burden. We therefore affirm the trial court's grant of summary judgment in favor of Sheriff Paxton.
2. Greenway asserts the trial court erred in granting summary judgment in favor of Northside because genuine issues of fact exist with regard to Northside's liability for ordinary negligence. Although Greenway's complaint and amended complaints did not assert a negligence theory of recovery, we may consider it because it is raised by the evidence before us, Greenway argued it below, and the trial court ruled upon it. See **751 Hamburger v. PFM Capital Mgmt., 286 Ga.App. 382, 386(1)(b), n. 14, 649 S.E.2d 779 (2007); DeLoach v. Foremost Ins. Co., 147 Ga.App. 124, 125(1)(A), 248 S.E.2d 193 (1978).
In order to recover against the hospital for ordinary negligence, Greenway must show: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage....” Pattman v. Mann, 307 Ga.App. 413, 417, 701 S.E.2d 232 (2010). In this case, in analyzing the hospital's duty of care, we must consider whether Northside voluntarily undertook a duty for which it may be held liable. Osowski v. Smith, 262 Ga.App. 538, 540(1), 586 S.E.2d 71 (2003).
[O]ne who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. When one undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. Id. The person assuming such responsibility may be held liable for negligently performing the duties so assumed.
(Citations and punctuation omitted.) Id.
In this case, genuine issues of material fact exist as to whether Northside voluntarily undertook a duty to help Greenway ensure the safety of his dogs during his hospitalization, to provide advice about the effect of the release he signed, to advise him about the entity *381 employing Deputy Roper, and to advise him about which entity would be taking custody of his dogs if he signed the release. Questions of fact also exist as to whether Northside negligently performed any duties so assumed by its conduct in calling Animal Control instead of the Humane Society and providing inaccurate information to Greenway about Deputy Roper's employment, the entity which would take custody of his dogs, and the effect of the release.
Northside contends that, even if it did breach a duty owed to Greenway, “the property damages at issue are simply too remote from any conduct attributable to the hospital to support any recovery against it.” It asserts “multiple intervening actions” preclude a finding that any negligence on its part proximately caused the death of his dogs.
“The question of proximate cause is usually reserved for the jury and can be decided on summary judgment only in plain and indisputable cases.” (Citation and punctuation omitted.) Vann, supra, 313 Ga.App. at 161(2), 721 S.E.2d 156 (2011). Summary judgment should not be granted on the issue of proximate cause unless “reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of foreseeability) to the facts.” (Citation and punctuation omitted.) Id.
It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant's act, and which was sufficient of itself to cause the injury.
if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrongdoer, the causal connection is not broken, and the original wrong-doer, is responsible for all of the consequences resulting from the intervening act.
Cotton v. Smith, 310 Ga.App. 428, 440–441(3), 714 S.E.2d 55 (2011).
*382 In this case, the evidence presented, when viewed in favor of Greenway, presents a jury issue on whether the euthanization of Greenway's dogs was a reasonably foreseeable **752 consequence of Northside's conduct in seeking the assistance of Animal Control, as opposed to the Humane Society, in addition to its conduct in providing inaccurate information to Greenway about the effect of the release, Deputy Roper's employment, and the entity which would take custody of his dogs. Cotton, supra, 310 Ga.App. at 440–441(3), 714 S.E.2d 55 (holding jury issue existed as to whether school's conduct in releasing student to unauthorized person was proximate cause of her subsequent molestation by this person); Daniel v. Bank South Corp., 183 Ga.App. 274, 276–277, 358 S.E.2d 664 (1987) (finding jury issue as to whether bankruptcy and foreclosure damages were proximately caused by bank's failure to provide accurate credit information to another lender from whom the plaintiff sought a loan for his real estate activities). The owner release form signed by Greenway expressly provided that Greenway's dogs could be euthanized and issues of fact exist as to whether the hospital's employees made representations to Greenway about the content and effect of the waiver form before Greenway signed it.
Northside also asserts that a judicial admission made by Greenway mandates summary judgment in its favor on the issue of proximate cause. In a brief filed in opposition to Sheriff Paxton and Deputy Roper's motion for summary judgment, Greenway contended: “Officer Roper lied to [his] attending nurse and said he was with the Humane Society. The Plaintiff believed Officer Roper's lies and this was the sole reason that he signed the release.” This statement in Greenway's brief does not alter the proximate cause analysis with respect to Northside because it is not inconsistent with his deposition testimony that hospital personnel informed him that his animals would be going to the Humane Society. Greenway's brief does not contain an admission that Deputy Roper lied directly to Greenway, but instead asserts that Deputy Roper lied to the nurse. This assertion is consistent with Stockel's testimony that the officer told her that he was with the Humane Society. Because issues of fact exist as to whether hospital personnel told Greenway about Deputy Roper's alleged employment with the Humane Society and issues of fact exist as to whether they may have miscommunicated or misunderstood Deputy Roper's employment affiliation, the statement in Greenway's brief does not mandate summary judgment in favor of the hospital on the issue of proximate cause.
*383 3. In his remaining enumeration of error, Greenway asserts the trial court erred by granting summary judgment in favor of NALAA, the private entity operating the Forsyth County Animal Control shelter on behalf of the county. In his complaint, Greenway alleged an agreement had been reached between his neighbor, Green, and a representative answering the phone on behalf of the pound operated by Dr. Orr. In opposition to NALAA's summary judgment motion, Greenway submitted an affidavit from Green outlining the agreement Green had reached with a woman working at the pound for the safe-keeping of Greenway's dogs. During the summary judgment motion hearing, Greenway also relied upon this agreement to oppose NALAA's motion for summary judgment.
(1) the defendant made a promise or promises; (2) the defendant should have reasonably expected the plaintiffs to rely on such promise; (3) the plaintiffs relied on such promise to their detriment; and (4) an injustice can only be avoided by the enforcement of the promise, because as a result of the *384 reliance, plaintiffs changed their position to their detriment by surrendering, forgoing, or rendering a valuable right.
(Citation omitted.) Rental Equip. Group v. MACI, LLC, 263 Ga.App. 155, 157(1)(b), 587 S.E.2d 364 (2003).
In this case, the following facts create genuine issues with regard to Greenway's promissory estoppel claim: Greenway and his neighbor Green “had an understanding that [Green] would help him take care of [the] dogs whenever ... needed;” Greenway heard his neighbor assure him that he would “take good care of your dogs” before he was transported to the hospital; Green “told the police and EMT's that [he] would look after the dogs”; Green contacted the county pound on Greenway's behalf and obtained a promise that the dogs would not be euthanized;[FN5] and Green left on a business trip and took no further action to protect the dogs' safety in reliance upon this promise.
While the releases provided to NALAA may have authorized it to euthanize Greenway's dogs, it was also authorized to subsequently enter into a promise not to do so.[FN6] And, Greenway, as a principal, would be entitled to damages suffered as a result of representations made to his authorized agent acting on his behalf to protect the well-being of his dogs.[FN7] After construing every inference in favor of the nonmovant from the record before us, we conclude that genuine issues of material fact exist as to whether NALAA can be held liable for the euthanization of Greenway's dogs based upon the theory of promissory estoppel. We must therefore reverse the trial court's grant of summary judgment in NALAA's favor.
Judgment affirmed in part and reversed in part.
ANDREWS, J., concurs in judgment only.
[FN1] As a result of a work injury in 2001, Greenway is totally disabled, receives social security benefits, and takes numerous medications to manage his pain, anxiety, and difficulty sleeping.
[FN2] Hancock admitted that he almost said Humane Society instead of Animal Control in this quoted sentence.
[FN4] Greenway's complaint consists of 125 numbered paragraphs with a general prayer for relief at the end. While the caption states it is a “Complaint for Cruelty to Animal, Trespass, Deprivation of Personalty, Interference with Chattel, Invasion of Privacy, and Punitive Damages,” the body of the complaint contains no counts or theories of recovery. The facts alleged in the complaint fall within the elements of a promissory estoppel claim, and it is clear that Greenway seeks to recover damages from NALAA based upon the promise it made to his neighbor and agent, Green. Greenway asserted that this promise precluded summary judgment in NALAA's favor in his written brief below and during the summary judgment hearing, and he also relies upon it in his brief to this court. “[C]omplaints and other pleadings should be construed as to do substantial justice, that is, liberally in favor of the pleader.” (Citation and punctuation omitted.) Dudley v. Wachovia Bank, 290 Ga.App. 220, 225(2), 659 S.E.2d 658 (2008). “The well established rule in Georgia is that, under our system of notice pleading, the substance, rather than the nomenclature, of legal pleadings determines their nature. [Cit.]” Cotton v. Fed. Land Bank, 246 Ga. 188, 191, 269 S.E.2d 422 (1980).
[FN5] Mrs. Orr's subsequent statement that the promise would have been honored had she been aware of it supports an inference that the employee was authorized to make such a promise on behalf of NALAA.
[FN6] The release signed by Greenway did not include a merger clause or a prohibition against subsequent oral amendments.

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On 20 November 2017, twenty days after its publication in the Official Journal of the European Union, Regulation 1939/2017 establishing the European Public Prosecutor’s Office – commonly referred to as the EPPO – entered into force. It is the most advanced stage in the creation of a common criminal justice area in the EU, as the EPPO is a true prosecutor’s office for conducting criminal investigations. It is – from the outset – not a coordination office, like Eurojust, and it is not an office for administrative investigations, like OLAF, but indeed a criminal investigation and prosecution office. The field in which the EPPO is competent to conduct such investigations is precisely the protection of the Union’s financial interests,1 the so-called “PFI area.” It addresses specific offences concerning the revenue and expenditure of the Union’s budget, as defined in Directive 1371/2017 (the so-called PFI Directive).2 Once more, the PFI area proves to be the most important sector in EU law involved in the creation of a true area of European criminal justice.
To date, the establishment of the EPPO completes a development, the start of which is traditionally seen in the ruling of the European Court of Justice in the 1989 “Greek Maize” case, when the Union’s criminal law was born and advanced. This always happened with a view to the creation of a common legal and judicial space. In all honesty, however, one cannot be completely enthusiastic about the approved version of the EPPO Regulation yet, because further steps could have been accomplished.
This opinion will be made clearer in the following, when we will go through some of the most significant parts of the EPPO regulation: the EPPO’s powers and structure, the cross-border investigations and the relationships with the other existing bodies of the EU dealing with investigations and judicial cooperation, especially with OLAF.
However, the above-mentioned article no longer appears in the final version of the regulation. In the negotiations, the Member States agreed to rule it out, as they do not entirely share such an idea. It has also come to pass that not all EU Member States have decided to join the new office. In line with Art. 86 TFEU, the EPPO has been approved with enhanced cooperation, which allows a closer cooperation on certain subjects only among a limited number of Member States. To date, twenty Member States decided to join the EPPO on this basis. The United Kingdom, Ireland, and Denmark (which, according to the Treaty, already enjoy a specific regime on criminal justice issues), but also Poland, Malta, Sweden, and Hungary are not taking part to it, in addition – at least and at present – to a founding State of the EEC, the Netherlands (although there might be some expectation that they will join at a later stage4). Twenty states, however, are still a significant number for establishing an office that will carry out criminal investigations in the field of the protection of the EU’s financial interests.
The EPPO will consist of two layers: a central level and a decentralised one. The central office, based in Luxembourg, will comprise the European Chief Prosecutor and – unlike the 2013 proposal – a college of twenty prosecutors: one for each participating Member State. However, so-called European Delegated Prosecutors will carry out investigations exclusively at the local level. They are members of the national judiciary as regards their administrative status, but, when dealing with an “EPPO case,” they will operationally belong to the European office.
The critical point of the described entire structure of the EPPO is cross-border investigations. In principle, a common European legal area, in the true sense of the word, requires the same procedural rules regardless of the state in which an investigation is carried out, especially once a single investigation office is set up. The EPPO Regulation, however, does not foresee any sort of European criminal procedural code. It is true that the 2013 proposal was also lacking such common rules, but it at least tried, in Art. 26, to provide for a unification of investigative measures, by establishing the conditions and pre requisites for their adoption at the European level.
The practical problem that arises concerns which law is applicable when European Delegated Prosecutor, conducting an investigation into allegations of crime that took place in the territory of his home country, needs to carry out some investigative actions in another Member State. According to Art. 31 of the EPPO Regulation the European Delegated Prosecutor who is handling the case “shall decide on the adoption of the necessary measure” and then “assign it to a European Delegated Prosecutor located in the Member State where the measure needs to be carried out.” The regulation does the split between the EPPO acting within one territorial area and national sovereignty. On the one hand, the solution of the regulation is certainly more advanced than any cooperation instrument so far used, including the European Investigation Order.5 This is an example of language that truly represents the office’s unity beyond geographic barriers. On the other hand, the problem of the applicable law remains. In the absence of a common procedural law, the regulation seeks to achieve a difficult balance between lex fori and lex loci, tending to favour the latter (Art. 32) but without prejudice to the different level of guarantees that may be provided for in national legislation. The system is certainly not an expression of a common legal area, namely the “single legal area” mentioned in the Commission proposal of 2013. It leaves fully open the differences that national laws can engender regarding the adoption and execution of individual investigative measures. The contradiction of this system with the unity of the investigative office is, therefore, even greater.
The decision-making system within the investigation also seems rather complicated. The functioning of the “Permanent Chambers” mitigates the foreseeable disproportion of workload among the European Prosecutors at the central level, depending on the number of cases opened by the European Delegated Prosecutors. In principle, a Permanent Chamber could take a decision on a case involving a legal system whose European Prosecutor is not sitting in that chamber. In order to ensure proper knowledge of the legal system involved in the case, Art. 10 para. 9 of the EPPO Regulation stipulates the following: “In addition to the permanent Members, the European Prosecutor who is supervising an investigation or a prosecution in accordance with Art. 12(1) shall participate in the deliberations of the Permanent Chamber.” In some cases, the European Delegated Prosecutor may also attend the Permanent Chamber’s meeting (without any right to vote). The compatibility of a sort of “collegial” decision-making system in a prosecutorial office with the requirements of efficiency and speediness in an ongoing criminal investigation remains to be seen; only practice will show how effective it is in counteracting crimes that the EPPO must pursue.
These few aspects already show the dilemma between starting with something imperfect, but still existing, or waiting for a text that fully corresponds to the ideal. Of course, even ten years ago – after failure of the 2004 European Constitutional Treaty following the referendums in France and the Netherlands in 2005 – the concrete establishment of the European Public Prosecutor’s Office appeared very difficult, despite the studies and analysis that preceded its inception, e.g. the “Corpus Iuris” project (1997–2000), directed by Prof. Mireille Delmas-Marty and, more recently, the project for the creation of EPPO “model rules” (2011-2012), directed by Prof. Katalin Ligeti.6 Against this background, the approval of the Office’s founding regulation is certainly an important achievement for those who care about European integration and the creation of an authentic area of criminal justice in the Union. Nevertheless, regret remains that the Office was not set up in a more ambitious way, in full expression of the concept of a common legal area referred to above. This was not completely achieved, and some aspects of the future functioning of the EPPO, such as relations with national authorities, as well as with European bodies, especially Eurojust and OLAF, need to be verified in practice.
The EPPO’s relationship with the other important body for the protection of the Union’s financial interests, OLAF, is a very interesting and sensitive issue. OLAF conducts administrative inquiries in the PFI area, including the possibility to transfer its investigation report and related evidence to the national judicial authorities for admission in criminal proceedings under the national legislations. The OLAF Regulation stipulates that the OLAF report has the same value as the reports drawn up by the national administrative authorities in each national jurisdiction.7 OLAF is therefore a body – indeed the only body in the Union prior to the EPPO – which has the task of carrying out effective investigations in the area of the protection of the EU’s financial interests − albeit of an administrative nature. In this sense, it can be considered the true progenitor of the new office, despite the formulation of Art. 86 TFEU that envisages that the EPPO should be “established from Eurojust”.
From the time of drafting of the Commission proposal in 2013, the problem of relations between the two offices was analysed, in order to avoid the risk of having two bodies with overlapping investigative powers in the same matter, although both operate on two different levels. Art. 101 of the EPPO Regulation is the starting point for looking at the relationship between the two bodies; it establishes the general principle that no parallel administrative investigation led by OLAF be carried out when a criminal case at the EPPO is open. It also draws a line on the cooperation between the two offices in terms of exchanging information, in situations requiring assessment in relation to the concrete case, without excluding the possibility of parallel and simultaneous investigations.
Hence, the first, basic conclusion that can be drawn from the text of the EPPO Regulation is that OLAF will not disappear because of the EPPO’s establishment. Regarding OLAF’s role in the upcoming scenario, we have to keep in mind, however, that the final text of the regulation derives from the Commission proposal of 2013. In this proposal, the EPPO central level was smaller; no college of the prosecutors was foreseen but just a Chief Prosecutor and four prosecutors. The rest of the central office was composed of administrative and investigative staff. Indeed, under the proposal, the central department of the EPPO was empowered to carry out criminal investigations directly, albeit in specific, exceptional, and limited situations. In these cases, the plan was for the central office that the prosecutors could avail themselves of the investigative experience of investigative staff, which was supposed to be transferred from OLAF. In this version, therefore, it was planned that OLAF substantially contributes to the EPPO by also supplying part of its investigative staff for the limited cases in which the EPPO central office would be carrying out investigations personally in a single legal area.
For investigations involving the second and third category of States where the EPPO cannot directly take actions in their territories, the coordination and facilitation action by bodies such as OLAF (and Eurojust) will remain essential, as it is the case today, even though there is a diversity of legal frameworks that will distinguish relations with the last two categories of States.
b) the powers: they both have effective investigative powers and not just coordination powers.
So far, OLAF was the only European investigative body in the PFI area. It is true that OLAF investigations are on the administrative, not criminal, side. Under Art. 11 of Regulation 883/2013, however, an OLAF report (with evidence gathered during the enquiry) can be transferred to the judicial authorities, and used in criminal proceedings. OLAF has so far also been the only European body that has the power to carry out investigations into offences (affecting the Union’s financial interests) in a European common space and to let evidence circulating in the same common space. These two features bring OLAF much closer to the new European investigation and prosecution office than any other European body in the field of judicial cooperation.
The EPPO would do well to make use of the OLAF’s experience in the PFI field, within the scope of Art. 101 of the EPPO Regulation: as regards the exchange of information, OLAF can certainly provide added value in investigations to protect the Union’s financial interests.9 Today, OLAF already deals with several issues alongside the investigations in the PFI area. We recall the management of databases with information on fraud or the “financial follow-up” of cases, which involve not only the administrative investigations but also specifically the criminal ones that are carried out in the Member States.
In sum, the current legal framework still leaves a wide margin for the co-existence of the two bodies – a loyal and close cooperation between them is highly recommended. The future ahead of us is thus very exciting. The coming years, during which the EPPO will be made operational, will be sure to reveal more about the new frontiers of the protection of the Union’s financial interests – a sector that deserves to be deeply analysed.


text:
Dec. 6, 1967, Rehearing Denied Jan. 19, 1968, en banc.
Harry F. Peck, Jr., Hayes & Peck, Milwaukee, Wis., for defendant-appellant, Russell Freeman.
James B. Brennan, U.S. Atty., Thomas J. Jones, Asst. U.S. Atty., Milwaukee, Wis., for appellee.
Before KNOCH, KILEY and SWYGERT, Circuit Judges.
Defendant Freeman was convicted by the district court, without a jury of willfully refusing to submit to induction into the armed forces, 50 App. U.S.C. Sec. 462, and was sentenced to two years imprisonment. He has appealed. We reverse.
Freeman was classified 1-A in February, 1961, and received a Notice of Classification (SSS No. 110) which includes notice of the right to a personal appearance and to appeal. He did not appeal. After being ordered to report for physical examination he filed a Special Form for Conscientious Objector (SSS No. 150) requesting the classification of conscientious objector. The Board refused to reopen his classification and informed him of this decision by a letter which included no notice of any right to appeal. Subsequently, after his child was born, Freeman was classified 3-A. In February, 1965, he was again classified 1-A, was sent a Notice of Classification, and again did not appeal. Thereafter, he was found acceptable for military service and was ordered to report for induction. He then submitted a letter refusing to serve because of religious beliefs. He reported for induction and refused to submit. His indictment and conviction followed.
In its letter of February 8, 1962, refusing to reopen Freeman's classification to consider his request for conscientious objector suatus, the Board stated that it had 'reviewed' Freeman's classification with his formal claim to conscientious objector status, that the Board did not 'feel' the information in the file warranted reopening the classification, and that he would remain in classification 1-A. Freeman contends that he was denied due process in the Local Board's refusal to reopen his file because of the consequent denial of his right of appeal by failure of the Board to inform him of that right. This contention was a basis urged for acquittal at the close of the government case in the criminal trial before us.
The Fifth Circuit in Olvera v. United States, 223 F.2d 880, held that a Local Board may not arbitrarily refuse to open a registrant's classification where he presents new information which, if true, would require reclassification. The holding was based on the court's view that the refusal to reopen denied a registrant his right of appeal and violated the 'concepts of basic fairness which underlie all our legislation.' Simmons v. United States, 348 U.S. 397, 405, 75 S.Ct. 397, 402, 99 L.Ed. 453.
We Think the Olvera decision is correct because the procedural framework of the draft classification process and the narrowly limited judicial review available to draft registrants make adherence to procedural safeguards crucial to the maintenance of basic fairness.
The danger posed by this narrow scope of review is particularly acute when a claim for conscientious objector status is made. United States v. Wierzchucki, D.C., 248 F.Supp. 788. A sincere claimant for conscientious objector status cannot turn to the habeas corpus remedy because his religious belief prevents him from accepting inductio under any circumstances. As a result he is limited to seeking review in a criminal trial for refusal to submit. In this criminal proceeding, as in any proceeding reviewing a draft classification, his defense of invalid classification is tested by the 'basis in fact' formula. Under these circumstances conviction is almost inevitable, since the Board's refusal to grant the conscientious objector classification is based on an inference as to the sincerity of the registrant's belief and there will almost always be something in the record to support an inference of lack of sincerity.
Finally, the critical nature of the classification process with regard to processing a claim for conscientious objector status is indicated because our laws have great concern for the protection of freedom of reliegion and conscience, and the conscientious objector classification is an attempt to carefully balance the need for mobilizing manpower for defense and the protections afforded by the First Amendment.
The vital question here is the validity of the Board's denial of Freeman's request to reopen and reconsider his classification in 1962 pursuant to his claim of conscientious objector status in the SSS Form No. 150 in light of the fact that the Board thereby effectually denied Freeman's right of appeal. The pertinent regulation governing the Board's action on this request provides: 'The local board may reopen and consider anew the classification of a registrant (a) upon written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant's classification; * * *.' 32 C.F.R. 1625.2.
The key difference between a refusal of a Board to reopen a classification, and the granting of reopening followed by a denial of the requested classification, is in the requirement that if the request to reopen is granted the Board must classify the registrant 'in the same manner as if the had never before been classified' 32 C.F.R. 1625.11; and must 'mail notice thereof on Notice of Classification (SSS No. 110) * * * and on Classification Advice (SSS No. 111) (to the registrant) * * *.' 32 C.F.R. 1625.12. This formal notification is a basis for the registrant's right to a personal appearance and to appeal his classification. When a Board refuses to reopen a classification, formal notice is not required and the Board must merely 'advise' the registrant that reopening the classification is not warranted. No notice of any right to appeal is given. Accordingly, we think Freeman was effectually denied, in 1962, his right to appeal the denial of his request for conscientious objector status.
In our opinion the Local Board was compelled to reopen Freeman's classification in 1962 and extend to him all the rights provided in the regulations since he presented new information in his 1962 SSS Form 150 which, if true, entitled him to reclassification.3 The Board deprived him of the right when it, instead of reopening his classification, decided the 'merits' of his claim and notified him by letter of the refusal to reopen, thereby denying him the appropriate procedural safeguards.
The denial of due process in 1961 was not obviated by the fact that in 1965 Freeman was duly notified of reclassification from 3-A to 1-A and did not appeal. He could not be expected to infer from the notice of classification in 1965 that he then had an opportunity to appeal the rejection of his 1961 request for conscientious objector status which had been previously denied without affording him any right to appeal. The awesome responsibility carried by Local Boards in 'balancing between the demands of an effective system of mobilizing the nation's manpower in times of crisis and the demands of fairness toward the individual registrant,' cannot justify denial of basic fairness. Simmons v. United States, 348 U.S. 397, 403, 75 S.Ct. 397, 99 L.Ed. 453.
There is no merit in the government's contention that the errors in the classification process were cured by the de novo consideration of Freemans' classification made during his criminal trial. The issue of whether Freeman was entitled to conscientious objetor status had no place in the trial. Congress has given to Local Boards the power to classify registrants and a scheme of statutory and regulatory procedures has been established. The courts have no classifying role in the scheme. They are precluded from acting as 'superboards' in making de novo classifications. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428. Moreover, even if we were to consider the evidence presented at the de novo hearing, it is clear that the government has not met its burden of proving, beyond a reasonable doubt, that Freeman was not prejudiced by the denial of his right to appeal.4 Steele v. United States, 1 Cir., 240 F.2d 142.
Messr. Harry F. Peck, Jr., of Milwaukee, Wisconsin, acted as court appointed counsel for Freeman on this appeal. The Court extends thank to him for his fine service to this court and to his client.
For the reasons given, we reverse.
Regretfully, I find myself in disagreement with the conclusion that the Local Board was compelled to reopen the defendant's classification in 1961 on the ground that he had presented new information in his 1961 SSS Form 150, which, if true, would have entitled him to reclassification.
Freeman stated in his Special Form for Conscientious Objector that he believed in a supreme being, that he was a member of the Islam religion, and that by reason of his religius bliefs he was opposed to participation in war in any form.
Most of this data comes from statements appearing in the printed form which were adopted by the defendant by check mark or signature. When the whole form is considered, including his own added comments, no such clear-cut statement is presented.
Describe the nature of your belief which is the basis of your claim made in Series I above, and state whether or not your belief in a Supreme Being involves duties which to you are superior to those arising from any human relation.
I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant training and service in the Armed Forces. I, therefore, claim exemption from both combatant and noncombatant training and service in the Armed Forces.
I cannot agree that on this meager information the Board was obliged to reopen its case particularly in view of the fact that the defendant did not request the form for Conscientious Objector until 10 days after an order issued in November, 1961, directing him to report for a physical examination, having ignored notice of his right to appeal his initial classification of 1-A, notice of which was sent to him in Febrary, 1961. I would affirm the decision of the District Court.

matches: v. v. v. v. v. v.


Peggy STRICKLAND, a minor, by Mr. and Mrs. Virgil Justice, her parents and next friends, et al.
Rehearing Denied April 14, 1975.
See 421 U.S. 921, 95 S.Ct. 1589.
1. While on the basis of commonlaw tradition and public policy, school officials are entitled to a qualified good-faith immunity from liability for damages under § 1983, they are not immune from such liability if they knew or reasonably should have known that the action they took within their sphere of official responsibility would violate the constitutional rights of the student affected, or if they took the action with the malicious intention to cause a deprivation of such rights or other injury to the student. But a compensatory award will be appropriate only if the school officials acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that their action cannot reasonably be characterized as being in good faith. Pp. 313-322.
2. When the regulation in question is construed, as it should have been and as the record shows it was construed by the responsible school officials, to prohibit the use and possession of beverages containing any alcohol, rather than as erroneously construed by the Court of Appeals to refer only to beverages containing in excess of a certain alcoholic content, there was no absence of evidence to prove the charge against respondents, and hence the Court of Appeals' contrary judgment is improvident. Section 1983 does not extend that right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations and was not intended to be a vehicle for federal-court correction of errors in the exercise of school officials' discretion that do not rise to the level of violations of specific constitutional guarantees. Pp. 322-326.
3. Since the District Court did not discuss whether there was a procedural due process violation, and the Court of Appeals did not decide the issue, the Court of Appeals, rather than this Court, should consider that question in the first instance. P. 326-327.
485 F.2d 186, vacated and remanded.
G. Ross Smith, Little Rock, Ark., for petitioners.
Ben Core, Fort Smith, Ark., for respondents.
Respondents Peggy Strickland and Virginia Crain brought this lawsuit against petitioners, who were members of the school board at the time in question, two school administrators, and the Special School District of Mena, Ark.,1 purporting to assert a cause of action under 42 U.S.C. § 1983, and claiming that their federal constitutional rights to due process were infringed under color of state law by their expulsion from the Mena Public High School on the grounds of their violation of a school regulation prohibiting the use or possession of intoxicating beverages at school or school activities. The complaint as amended prayed for compensatory and punitive damages against all petitioners, injunctive relief allowing respondents to resume attendance, preventing petitioners from imposing any sanctions as a result of the expulsion, and restraining enforcement of the challenged regulations, declaratory relief as to the constitutional invalidity of the regulation, and expunction of any record of their expulsion. After the declaration of a mistrial arising from the jury's failure to reach a verdict, the District Court directed verdicts in favor of petitioners on the ground that petitioners were immune from damages suits absent proof of malice in the sense of ill will toward respondents. 348 F.Supp. 244 (WD Ark. 1972). The Court of Appeals, finding that the facts showed a violation of respondents' rights to 'substantive due process,' reversed and remanded for appropriate injunctive relief2 and a new trial on the question of damages. 485 F.2d 186 (CA8 1973). A petition for rehearing en banc was denied, with three judges dissenting. See id., at 191. Certiorari was granted to consider whether this application of due process by the Court of Appeals was warranted and whether that court's expression of a standard governing immunity for school board members from liability for compensatory damages under 42 U.S.C. § 1983 was the correct one. 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974).
* The violation of the school regulation3 prohibiting the use or possession of intoxicating beverages at school or school activities with which respondents were charged concerned their 'spiking' of the punch served at a meeting of an extracurricular school organization attended by parents and students. At the time in question, respondents were 16 years old and were in the 10th grade. The relevant facts begin with their discovery that the punch had not been prepared for the meeting as previously planned. The girls then agreed to 'spike' it. Since the county in which the school is located is 'dry,' respondents and a third girl drove across the state border into Oklahoma and purchased two 12-ounce bottles of 'Right Time,' a malt liquor. They then bought six 10-ounce bottles of a soft drink, and, after having mixed the contents of the eight bottles in an empty milk carton, returned to school. Prior to the meeting, the girls experienced second thoughts about the wisdom of their prank, but by then they were caught up in the force of events and the intervention of other girls prevented them from disposing of the illicit punch. The punch was served at the meeting, without apparent effect.
Ten days later, the teacher in charge of the extracturricular group and meeting, Mrs. Curtis Powell, having heard something about the 'spiking,' questioned the girls about it. Although first denying any knowledge, the girls admitted their involvement after the teacher said that she would handle the punishment herself. The next day, however, she told the girls that the incident was becoming increasingly the subject of talk in the school and that the principal, P. T. Waller, would probably hear about it. She told them that her job was in jeopardy but that she would not force them to admit to Waller what they had done. If they did not go to him then, however, she would not be able to help them if the incident became 'distorted.' The three girls then went to Waller and admitted their role in the affair. He suspended them from school for a maximum two-week period, subject to the decision of the school board. Waller also told them that the board would meet that night, that the girls could tell their parents about the meeting, but that the parents should not contact any members of the board.
Neither the girls nor their parents attended the school board meeting that night. Both Mrs. Powell and Waller, after making their reports concerning the incident, recommended leniency. At this point, a telephone call was received by S. L. Inlow, then the superintendent of schools, from Mrs. Powell's husband, also a teacher at the high school, who reported that he had heard that the third girl involved had been in a fight that evening at a basketball game. Inlow informed the meeting of the news, although he did not mention the name of the girl involved. Mrs. Powell and Waller then withdrew their recommendations of leniency, and the board voted to expel the girls from school for the remainder of the semester, a period of approximately three months.
The District Court instructed the jury that a decision for respondents had to be premised upon a finding that petitioners acted with malice in expelling them and defined 'malice' as meaning 'ill will against a person—a wrongful act done intentionally without just cause or excuse.' 348 F.Supp., at 248. In ruling for petitioners after the jury had been unable to agree, the District Court found 'as a matter of law' that there was no evidence from which malice could be inferred. Id., at 253.
The Court of Appeals, however, viewed both the instruction and the decision of the District Court as being erroneous. Specific intent to harm wrongfully, it held, was not a requirement for the recovery of damages. Instead, '(i)t need only be established that the defendants did not, in the light of all the circumstances, act in good faith. The test is an objective, rather than a subjective one.' 485 F.2d, at 191 (footnote omitted).
Petitioners as members of the school board assert here, as they did below, an absolute immunity from liability under § 1983 and at the very least seek to reinstate the judgment of the District Court. If they are correct and the District Court's dismissal should be sustained, we need go no further in this case. Moreover, the immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before reaching questions turning on the construction of the Constitution. Cf. Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974).6 We essentially sustain the position of the Court of Appeals with respect to the immunity issue.
'(I)n varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.' Scheuer v. Rhodes, 416 U.S. 232, 247—248, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974).
As the facts of this case reveal, school board members function at different times in the nature of legislators and adjudicators in the school disciplinary process. Each of these functions necessarily involves the exercise of discretion, the weighing of many factors, and the formulation of long-term policy.10 'Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act.' Scheuer v. Rhodes, supra, 416 U.S., at 246, 94 S.Ct., at 1691 (footnote omitted). As with executive officers faced with instances of civil disorder, school officials, confronted with student behavior causing or threatening disruption, also have an 'obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others.' Ibid.
These considerations have undoubtedly played a prime role in the development by state courts of a qualified immunity protecting school officials from liability for damages in lawsuits claiming improper suspensions or expulsions.12 But at the same time, the judgment implicit in this common-law development is that absolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.
Tenney v. Brandhove, Pierson v. Ray, and Scheuer v. Rhodes drew upon a very similar background and were animated by a very similar judgment in construing § 1983. Absent legislative guidance, we now rely on those same sources in determining whether and to what extent school officials are immune from damage suits under § 1983. We think there must be a degree of immunity if the work of the schools is to go forward; and, however worded, the immunity must be such that public school officials understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity.
'Public officials, whether Governors, Mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity—absolute or qualified—for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.' Scheuer v. Rhodes, 416 U.S., at 241 242, 94 S.Ct., at 1689 (footnote omitted).
The disagreement between the Court of Appeals and the District Court over the immunity standard in this case has been put in terms of an 'objective' versus a 'subjective' test of good faith. As we see it, the appropriate standard necessarily contains elements of both. The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student's constitutional rights, a school board member, who was voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard imposes neither an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are 'charged with predicting the future course of constitutional law.' Pierson v. Ray, 386 U.S., at 557, 87 S.Ct., at 1219. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.
'To justify the suspension, it was necessary for the Board to establish that the students possessed or used an 'intoxicating' beverage at a school-sponsored activity. No evidence was presented at either meeting to establish the alcoholic content of the liquid brought to the campus. Moreover, the Board made no finding that the liquid was intoxicating. The only evidence as to the nature of the drink was that supplied by the girls, and it is clear that they did not know whether the beverage was intoxicating or not.' 485 F.2d, at 190.
Although it did not cite the case as authority, the Court of Appeals was apparently applying the due process rationale of Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960),14 to the public school disciplinary process. The applicability of Thompson in this setting, however, is an issue that need not be reached in this case.15 The record reveals that the decision of the Court of Appeals was based upon an erroneous construction of the school regulation in question. Once that regulation is properly construed, the Thompson issue disappears.
The Court of Appeals interpreted the school regulation prohibiting the use or possession of intoxicating beverages as being linked to the definition of 'intoxicating liquor' under Arkansas statutes16 which restrict the term to beverages with an alcoholic content exceeding 5% by weight.17 Testimony at the trial, however, established convincingly that the term 'intoxicating beverage' in the school regulation was not intended at the time of its adoption in 1967 to be linked to the definition in the state statutes or to any other technical definition of 'intoxicating.'18 The adoption of the regulation was at a time when the school board was concerned with a previous beer-drinking episode.19 It was applied prior to respondents' case to another student charged with possession of beer.20 In its statement of facts issued prior to the onset of this litigation, the school board expressed its construction of the regulation by finding that the girls had brought an 'alcoholic beverage' onto school premises.21 The girls themselves admitted knowing at the time of the incident that they were doing something wrong which might be punished.22 In light of this evidence, the Court of Appeals was ill advised to supplant the interpretation of the regulation of those officers who adopted it and are entrusted with its enforcement. Cf. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972).
Given the fact that there was evidence supporting the charge against respondents, the contrary judgment of the Court of Appeals is improvident. It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). But § 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members and § 1983 was not intended to be a vehicle for federalcourt correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees. See Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968); Tinker, supra, 393 U.S. at 507, 89 S.Ct. at 736.
Respondents' complaint alleged that their procedural due process rights were violated by the action taken by petitioners. App. 9. The District Court did not discuss this claim in its final opinion, but the Court of Appeals viewed it as presenting a substantial question. It concluded that the girls were denied procedural due process at the first school board meeting, but also intimated that the second meeting may have cured the initial procedural deficiencies. Having found a substantive due process violation, however, the court did not reach a conclusion on this procedural issue. 485 F.2d, at 190.
Respondents have argued here that there was a procedural due process violation which also supports the result reached by the Court of Appeals. Brief for Respondents 27—28, 36. But because the District Court did not discuss it, and the Court of Appeals did not decide it, it would be preferable to have the Court of Appeals consider the issue in the first instance.
The judgment of the Court of Appeals is vacated and the case remanded for further proceedings consistent with this opinion.
I join in Parts I, III, and IV of the Court's opinion, and agree that the judgment of the Court of Appeals should be vacated and the case remanded. I dissent from Part II which appears to impose a higher standard of care upon public school officials, sued under § 1983, than that heretofore required of any other official.
The italicized sentence from Scheuer states, as I view it, the correct standard for qualified immunity of a government official: whether in light of the discretion and responsibilities of his office, and under all of the circumstances as they appeared at the time, the officer acted reasonably and in good faith. This was the standard applied to the Governor of a State charged with maliciously calling out National Guardsmen who killed and wounded Kent State students.4 Today's opinion offers no reason for imposing a more severe standard on school board members charged only with wrongfully expelling three teenage pupils.
There are some 20,000 school boards, each with five or more members, and thousands of school superintendents and school principals. Most of the school board members are popularly elected, drawn from the citizenry at large, and possess no unique competency in divining the law. Few cities and counties provide any compensation for service on school boards, and often it is difficult to persuade qualified persons to assume the burdens of this important function in our society. Moreover, even if counsel's advice constitutes a defense, it may safely be assumed that few school boards and school officials have ready access to counsel or indeed have deemed it necessary to consult counsel on the countless decisions that necessarily must be made in the operation of our public schools.
In view of today's decision significantly enhancing the possibility of personal liability, one must wonder whether qualified persons will continue in the desired numbers to volunteer for service in public education.
The Court of Appeals affirmed the directed verdicts awarded by the District Court to P. T. Waller, the principal of Mena Public High School at the time in question, S. L. Inlow, then superintendent of schools, and the Mena Special School District. 485 F.2d 186, 191 (CA8 1973). Since respondents have not cross-petitioned, the cases of these three parties are not before the Court.
The Court of Appeals noted that reinstatement was no longer possible since the term of expulsion had ended, but that the respondents were entitled to have the records of the expulsions expunged and to be relieved of any other continuing punishment, if any. Id., at 190.
'b. Valid causes for suspension from school on first offense: Pupils found to be guilty of any of the following shall be suspended from school on the first offense for the balance of the semester and such suspension will be noted on the permanent record of the student along with reason for suspension.
'(4) The use of intoxicating beverage or possession of same at school or at a school sponsored activity.' App. 102.
'1. That Virginia Crain, Peggy Strickland and Jo Wall are students of Mena High School and subject to the governing rules and policies of Mena High School.
'2. That on or about February 7, 1972 these three girls were charged with the responsibility of providing refreshments for a school function, being a gathering of students of the Home Economic class and some of their parents, on school premises, being the auditorium building of Mena High School, and being under the direction of Mrs. Curtis Powell.
'3. That the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer type beverage, and later went onto school premises with the alcoholic beverage and put two or more of the bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and parents.' App. 137.
The Court of Appeals in its statement of the facts observed that the malt liquor and soft drinks were mixed by the girls prior to their return to school, 485 F.2d, at 187, and petitioners in their brief recite the facts in this manner. Brief for Petitioners 5. This discrepancy in the board's findings of fact is not material to any issue now before the Court.
By taking a correspondence course and an extra course later, the girls were able to graduate with their class. Tr. of Oral Arg. 38—39.
In their original complaint, respondents sought only injunctive and declaratory relief. App. 11—12. In their amended complaint, they added a prayer for compensatory and punitive damages. Id., at 92. Trial was to a jury; and the District Court in ruling on motions after declaring a mistrial appears to have treated the case as having developed into one for damages only since it entered judgment for petitioners and dismissed the complaint on the basis of their good-faith defense. In a joint motion for a new trial, respondents specifically argued that the District Court had erred in treating the case as one for the recovery of damages only and in failing to give them a trial and ruling on their claims for injunctive and declaratory relief. Id., at 131. The District Court denied the motion. Id., at 133. Upon appeal, respondents renewed these contentions, and the Court of Appeals, after finding a substantive due process violation, directed the District Court to give respondents an injunction requiring expunction of the expulsion records and restraining any further continuing punishment. 485 F.2d, at 190. Petitioners urge that we reverse the Court of Appeals and order the complaint dismissed. Brief for Petitioners, 48. Respondents, however, again stress that the relief they sought included equitable relief. Brief for Respondents, 47—48, 50.
In light of the record in this case, we are uncertain as to the basis for the District Court's judgment, for immunity from damages does not ordinarily bar equitable relief as well. The opinion of the Court of Appeals does not entirely dispel this uncertainty. With the case in this posture, it is the better course to proceed directly to the question of the immunity of school board members under § 1983.
In McLaughlin v. Tilendis, 398 F.2d 287, 290—291 (CA7 1968), a case relied upon by the Court of Appeals below, the immunity was extended to school board members and the superintendent of schools only to the extent that they could establish that their decisions were founded on 'justifiable grounds.' Cf. Scoville v. Board of Ed. of Joliet Township H.S., 425 F.2d 10, 15 (CA7), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). In Smith v. Losee, 485 F.2d 334, 344 (CA10 1973) (en banc), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974), the immunity protecting university officials was described as one of good faith and the absence of malice where the facts before the officials 'showed a good and valid reason for the decision although another reason or reasons advanced for nonrenewal or discharge may have been constitutionally impermissible.' The District Court in Kirstein v. Rector and Visitors of University of Virginia, 309 F.Supp. 184, 189 (ED Va.1970), extended the immunity to action taken in good faith and in accordance with 'long standing legal principle.' See also Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 43 (CA3 1974); Handverger v. Harvill, 479 F.2d 513, 516 (CA9), cert. denied, 414 U.S. 1072, 94 S.Ct. 586, 38 L.Ed.2d 478 (1973); Wood v. Goodman, 381 F.Supp. 413, 419 (Mass.1974); Thonen v. Jenkins, 374 F.Supp. 134, 140 (EDNC 1974); Taliaferro v. State Council of Higher Education, 372 F.Supp. 1378, 1382—1383 (ED Va.1974); Vanderzanden v. Lowell School District No. 71, 369 F.Supp. 67, 72 (D.C.Or.1973); Jones v. Jefferson County Board of Education, 359 F.Supp. 1081, 1083—1084 (ED Tenn.1972); Adamian v. University of Nevada, 359 F.Supp. 825, 834 (D.C.Nev.1973); Boyd v. Smith, 353 F.Supp. 844, 845—846 (ND Ind.1973); Hayes v. Cape Henlopen School District, 341 F.Supp. 823, 829 (D.C.Del.1972); Schreiber v. Joint School District No. 1, Gibraltar, Wis., 335 F.Supp. 745, 748 (ED Wis.1972); Endicott v. Van Petten, 330 F.Supp. 878, 885—886 (D.C.Kan.1971); Holliman v. Martin, 330 F.Supp. 1, 13 (WD Va.1971); McDonough v. Kelly, 329 F.Supp. 144, 150—151 (NH 1971); Cordova v. Chonko, 315 F.Supp. 953, 964 (ND Ohio 1970); Gouge v. Joint School District No. 1, 310 F.Supp. 984, 990, 992—993 (WD Wis.1970).
'Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? Let us assume, merely for the moment, that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere. That would be a big assumption. But we would have to make an even rasher assumption to find that Congress thought it had exercised the power. These are difficulties we cannot hurdle. The limits of §§ 1 and 2 of the 1871 statute . . . were not spelled out in debate. We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.' 341 U.S., at 376, 71 S.Ct., at 788.
See Donahoe v. Richards, 38 Me. 379 (1854); Dritt v. Snodgrass, 66 Mo. 286 (1877); McCormick v. Burt, 95 Ill. 263 (1880); Board of Education of Cartersville v. Purse, 101 Ga. 422, 28 S.E. 896 (1897); Board of Ed. of City of Covington v. Booth, 110 Ky. 807, 62 S.W. 872 (1901); Morrison v. City of Lawrence, 181 Mass. 127, 63 N.E. 400 (1902); Sorrels v. Matthews, 129 Ga. 319, 58 S.E. 819 (1907); Douglass v. Campbell, 89 Ark. 254, 116 S.W. 211 (1909); Barnard v. Shelburne, 216 Mass. 19, 102 N.E. 1095 (1913); Sweeney v. Young, 82 N.H. 159, 131 A. 155 (1925) (absolute immunity for acts taken within range of general authority). See also 68 Am.Jur.2d, Schools § 268, pp. 592—593 (1973); 79 C.J.S. Schools and School Districts § 503d, p. 451 (1952); W. Prosser, Law of Torts § 132, p. 989 (4th ed. 1971); R. Hamilton & E. Reutter, Legal Aspects of School Board Operation 190—191 (1958).
See generally R. Campbell, L. Cunningham, & R. McPhee, The Organization and Control of American Schools 177—182 (1965).
The overwhelming majority of school board members are elected to office. See A. White, Local School Boards: Organization and Practices 8 (U.S. Office of Education, OE—23023, Bulletin No. 8, 1962); National School Boards Association, Survey of Public Education in the Member Cities of the Council of Big City Boards of Education 3 (Nov. 1968); Campbell, Cunningham, & McPhee, supra, n. 10, at 164—170. Most of the school board members across the country receive little or no monetary compensation for their service. White, supra, at 67—79; National School Boards Association, supra, at 3, 15—21; Campbell, Cunningham, & McPhee, supra, at 172.
'(School directors) are authorized, and it is their duty to adopt reasonable rules for the government and management of the school, and it would deter responsible and suitable men from accepting the position, if held liable for damages to a pupil expelled under a rule adopted by them, under the impression that the welfare of the school demanded it, if the courts should deem it improper.' Dritt v. Snodgrass, 66 Mo., at 293.
At the time of the Court of Appeals decision, the testimony at the trial to the jury had not been transcribed because of counsel's concern with limiting litigation costs, Tr. of Oral Arg. 23. The transcript was filed in the District Court after certiorari was granted. App. 120 n. 2.
See also Vachon v. New Hampshire, 414 U.S. 478, 480, 94 S.Ct. 664, 665, 38 L.Ed.2d 666 (1974); Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d 134 (1969); Johnson v. Florida, 391 U.S. 596, 598—599, 88 S.Ct. 1713, 1714, 20 L.Ed.2d 838 (1968); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 94 95, 86 S.Ct. 211, 215, 15 L.Ed.2d 176 (1965); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Cf. Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 617, 28 L.Ed.2d 10 (1971).
That is not to say that the requirements of procedural due process do not attach to expulsions. Over the past 13 years the Courts of Appeals have without exception held that procedural due process requirements must be satisfied if a student is to be expelled. See Goss v. Lopez, 419 U.S. 565, 576—578 n. 8, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).
See Ark.Stat.Ann. §§ 48—107, 48—503 (1964).
The Court of Appeals referred to comments which seemed also to adopt this construction made by the District Court in its findings of fact when it denied respondents' motion for a preliminary injunction. 485 F.2d, at 190; App. 80. After noting the District Court's initial view that petitioners would find it difficult to prove the requisite alcoholic content, the Court of Appeals expressed puzzlement at the failure of the lower court to discuss the absence of such evidence in its final opinion. The District Court, however, indicated in its instructions that the question of the proper construction of the regulation would not be relevant if the jury found that the school officials in good faith considered the malt liquor and punch to fall within the regulation. 348 F.Supp., at 248. The District Court's ultimate conclusion apparently made unnecessary a final decision on the coverage of the regulation.
Despite its construction of the present regulation, the Court of Appeals indicated that the school board had the authority to prohibit the use and possession of alcoholic beverages or to continue its policy of proscribing only intoxicating beverages. 485 F.2d, at 191.
Two members of the school board at the time that the regulation was adopted testified that there had been no discussion of tying the regulation to the State Alcohol Control Act and that the intent of the board members was to cover beer. 466—467 (testimony of petitioner Wood); id., 589—590 (testimony of Mrs. Gerald Goforth).
See the minutes of the board meeting at which the regulation was adopted in App. 103—104. See also Tr. 431—432 (testimony of Mrs. Mary L. Spencer, also a board member when the regulation was adopted); id., at 587—588 (Mrs. Goforth).
The student was suspended in October 1971 for the possession of beer at a school activity. There is no indication in the record of the alcoholic content of the beer. See Tr. 258—259, 268—269 (testimony of former Superintendent Inlow).
See n. 4, supra. Soon after this litigation had begun, the board issued a statement which said that the regulation 'prohibits the use and possession of alcoholic beverage on school premises . ...' App. 139.
See Tr. 75 (Strickland); id., at 119, 121 (Crain).
This percentage content was established through the deposition of an officer of the company that produces 'Right Time' malt liquor. App. 93—94.
Tr. 205 (testimony of Dr. W. F. Turner).
he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which his action violated a student's constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard neither imposes an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system. Any lesser standard would deny much of the promise of § 1983. Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are 'charged with predicting the future course of constitutional law.' Pierson v. Ray, 386 U.S. (547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967)). 557, 87 S.Ct. at 1219. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.' Ante, at 321-322.
The opinion indicates that actual malice is presumed where one acts in ignorance of the law; thus it would appear that even goodfaith reliance on the advice of counsel is of no avail.
The Court's rationale in Goss suggests, for example, that school officials may infringe a student's right to education if they place him in a noncollege-preparatory track or deny him promotion with his class without affording a due process hearing. See 419 U.S. 565, 597—599, 95 S.Ct. 729, 747—749, 42 L.Ed.2d 725 (Powell, J., dissenting). Does this mean that school officials who fail to provide such hearings in the future will be liable under § 1983 if a court subsequently determines that they were required?
For another current example of how unsettled constitutional law, deemed by some at least to be quite settled, may turn out to be, see the decision and opinions in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), and compare with Mr. Justice Stewart's dissent in Mitchell v. W. T. Grant Co., 416 U.S. 600, 629, 94 S.Ct. 1895, 1910, 40 L.Ed.2d 406 (1974).
'If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional.' Id., at 557, 87 S.Ct., at 1219.