text:
Page:Manual of the New Zealand Flora.djvu/593

Euphrasia.]

1. E. cuneata, Forst. Prodr. n. 234.—Perennial, 6–30 in. high or even more; stems erect or decumbent, firm, sometimes almost woody at the base, usually much branched and often excessively so, rarely simple; branches slender, virgate, leafy, puberulous or rarely almost glabrous. Leaves variable in size and shape, ⅕–⅔ in. long, broad or narrow obovate-cuneate, rounded at the tip, narrowed at the base into a distinct petiole of variable length, coriaceous, glabrous, with 1–3 more or less distinct notches on each side, rarely entire; margins flat, not recurved. Flowers usually very numerous, in large specimens from the repeated branching of the flowering stems and the reduction of the upper leaves to bracts forming a quasi-paniculate inflorescence, in smaller forms spicate; peduncles shorter than the calyx. Calyx small, narrow, 4-lobed; lobes obtuse, shorter than the tube. Corolla large, ½–¾ in. long, white with a yellow eye, sometimes with purplish streaks, pilose externally; upper lip 2-lobed, lobes emarginate; lower lip 3-lobed. Capsule linear-cuneate, emarginate, hairy or at length glabrous, exceeding the calyx. Seeds numerous, elongate.—''A. Rich. Fl. Nouv. Zel. 191; A. Cunn. Precur. n. 384; Raoul, Choix, 43; Hook. f. Fl. Nov. Zel. i. 199; Handb. N.Z. Fl. 219; Wettst. Monog. Euphr.'' 247, t. v. f. 369-374, and t. xiv. f. 1. E. tricolor, Col. in Trans. N.Z. Inst. xix. (1887) 264.

From the East Cape and Taupo southwards to Cook Strait, not uncommon. Has been recorded from several stations from Nelson to Otago, but I have seen no specimens which I can refer to it. Sea-level to 4500 ft. December–March.

A distinct species, well marked by the large size, much-branched perennial habit, cuneate leaves narrowed into a distinct petiole, large pedicelled flowers, and long narrow capsule. There seems to be two main varieties—one tall and slender, with numerous leafy branches, narrow long-petioled leaves, and copious inflorescence; the other, which is principally montane or subalpine, and which


text:
Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc./Opinion of the Court

delivered the opinion of the Court.

This is a direct appeal from a final judgment of a three-judge District Court, 28 U.S.C. §§ 1253, 2101, invalidating an order of the Interstate Commerce Commission. Ten applications of motor carriers to conduct general commodities operations between points in the Southwest and Southeast were consolidated in one proceeding. Three additional applicants were allowed to intervene. The hearing examiners, after extensive hearings, rejected each application. The Commission granted three of the applications of appellant carriers. Appellees, competing carriers, brought an action in the District Court, 28 U.S.C. § 1336, to suspend, enjoin, and annul that portion of the order of the Commission that authorizes issuance of certificates of public convenience and necessity to Red Ball, Bowman, and Johnson. The District Court refused to enforce the Commission's order because its findings and conclusions were arbitrary, capricious, and without rational basis within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706, and likewise refused to remand the case believing that no useful purpose would be served, 364 F. Supp. 1239, 1264.

[p284] The Administrative Procedure Act in 5 U.S.C. § 706 provides that:

"The reviewing court shall (2) hold unlawful and set aside agency action, findings, and conclusions found to be—

"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or]

"(E) unsupported by substantial evidence "

These two provisions of 5 U.S.C. § 706(2) (2) are part of six which are "separate standards." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413 (1971). The District Court properly concluded that, though an agency's finding may be supported by substantial evidence, based on the definition in Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), it may nonetheless reflect arbitrary and capricious action. There seems, however, to be agreement that the findings and conclusions of the Commission are supported by substantial evidence. The question remains whether, as the District Court held, the Commission's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as provided in 5 U.S.C. § 706(2)(A). We disagree with the District Court and accordingly reverse its judgment and remand the cases for consideration of one issue not reached by the District Court or by this Court.

I
The Motor Carrier provisions of the Interstate Commerce Act, 49 Stat. 551, 49 U.S.C. § 307, empower the [p285] Commission to grant an application for a certificate if it finds (1) that the applicant is "fit, willing, and able properly to perform the service proposed"; and (2) that the service proposed "is or will be required by the present or future public convenience and necessity." The Commission made both findings, relying upon the applicants' general service record in support of a finding of fitness, and upon expressions of customer dissatisfaction with the existing service in support of its conclusion that the service proposed was consistent with the public convenience and necessity. The competing appellee carriers made presentations designed to show that their existing service was satisfactory and that the applicants would not offer measurably superior performance. The District Court concluded that the Commission had acted arbitrarily in its treatment of the presentations made by the protesting carriers. While the Commission had acknowledged the appellees' evidence, its reasons for refusing to credit it would not, in the District Court's view, withstand scrutiny, making its action tantamount to an arbitrary refusal to consider matters in the record.

Under the "arbitrary and capricious' standard the scope of review is a narrow one. A reviewing court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, supra, at 416. The agency must articulate a "rational connection between the facts found and the choice made." Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). While we may not supply a reasoned basis for the agency's action that the [p286] agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 (1945). Having summarized the appropriate scope of review, we proceed to consider the District Court's objections seriatim.

The applicant carriers presented exhibits showing the time in transit of selected shipments that had been consigned to appellee carriers by particular shippers during a designated study period. As the Commission acknowledged, the selection of particular shipments from those occurring during the study period had been made with an eye toward demonstrating service inadequacies. These "worst case" studies figured in the Commission's finding that service would be improved by the entry of new carriers to the routes at issue.

The appellee carriers offered studies of their own. These covered the same period and the same shippers as the applicants' presentations, but whereas the applicants had selected particular shipments to emphasize inadequacies, the appellee carriers included in their presentations all of the shipments consigned during the study period. These exhibits, argued the protesting carriers, placed the incidents cited by the applicants in perspective and demonstrated that the existing service was generally acceptable. The Commission acknowledged the appellees' presentations but concluded that they offered an inadequate rebuttal to the applicants' exhibits because [p287] (1) they "relate to short periods of time or cover traffic handled for specified shippers"; and (2) the studies represented service provided by appellees after the Commission had designated the applications for hearing. Herrin Transportation Co., 114 M.C.C. 571, 599 (1971). The District Court ruled that the Commission had applied inconsistent standards in reviewing the evidence of the parties, since the appellees' exhibits were based upon the same study periods and the same shippers as the applicants' exhibits. 364 F. Supp., at 1259–1260.

We agree with the District Court that the first reason assigned by the Commission—that the appellees' exhibits were based only upon short periods and particular shippers—failed to distinguish the presentations of applicants and opponents. To counter the applicants' presentations, the protesting carriers chose the identical study periods and shippers but expanded the presentation to show all the shipments consigned. Since the protesters confined themselves to the periods and shippers the applicants had selected, there was no basis for an inference that the former had chosen so as to make the exhibits unrepresentative in their favor.

The Commission's second reason, however—that the appellees' studies covered periods subsequent to a notice of hearing—provides support for the Commission's assessment of the evidence. The Commission recognized that protesting carriers might have been spurred to improve their service by the threat of competition raised by the designation of applicants for hearing. Therefore, reasoned the Commission, the protesting carriers' performance subsequent to the notice of hearing might be superior to the service they normally offered, and their exhibits, covering those periods, had to be read in light of that possibility. But the Commission was not precluded from relying upon the demonstrated shortcomings of the protesters' service during that period, for the incentive [p288] the Commission indentified would have, if anything, distorted the performance studies in the protesters' favor.

The issue before the Commission was not whether the appellees' service met some absolute standard of performance but whether the "public convenience and necessity" would be served by the entry of new carriers into the markets served by appellees. United States v. Dixie Highway Express, 389 U.S. 409, 411–412 (1967). Even if the Commission had accepted appellees' exhibits at face value, it could still have concluded that the deficiencies were sufficient to justify the admission of additional carriers. Certainly the Commission was entitled to regard the appellees' studies as possibly nonrepresentative of the usual service afforded, The District Court also ruled that since there had been no suggestion during the evidentiary hearings that performance studies subsequent to notice of hearing might not be viewed as representative, the appellees had been denied fair notice of the standards by which their evidence would be judged. 364 F. Supp. 1239, 1260. We disagree. A party is entitled, of course, to know the issues on which decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation. Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292 (1937); United States v. Abilene & S. R. Co., 265 U.S. 274 (1924). But these salutary principles do not preclude a factfinder from observing strengths and weaknesses in the evidence that no party identified. If the examiners had raised the qualifications to appellees' evidence the Commission later inter posed, there would have been no basis for suggesting unfairness. See ''American Trucking Assns. v. Frisco Transportation Co.'', 358 U.S. 133, 144 (1958). The situation is not altered by the fact that the Commission parted company with the examiners. Even as to matters such as the credibility of witnesses, where the examiner is thought to have an advantage, the reviewing agency is not rigidly barred from taking a contrary position. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). We perceive no reason for binding an agency to the experience and viewpoint of [p289] the examiner in the interpretation of studies in the record. Appellees are not in a position to claim unfair surprise. The Commission offered the identical rationale in interpreting transit-time studies in a case decided just as hearings in this case began. See Braswell Freight Lines, 100 M.C.C. 482, 493–494 (1966). Appellees offered their studies knowing that the Commission might interpose qualifications. to reason that the short-comings [p289] were probably greater than these studies showed, and to conclude that service would be improved by granting the applications.

The applicants supported their service proposals with exhibits showing transit times over comparable distances on other routes. The appellees once again pointed out that the applicants had been selective and offered transit times on different routes served by the applicants that were substantially longer than those applicants proposed to provide on the routes at issue. Appellees thus argued that the applicants could not reasonably be expected to live up to their service proposals. In addition, the appellees cited service restrictions that the applicants practiced on other routes—refusal to make scheduled pickup of merchandise, refusal to handle shipments less than a certain weight, refusal to transport goods to certain destinations, and the like.

The Commission attributed little significance to the appellees' rebuttal. With respect to transit times, the Commission noted that different highway conditions might make transit times over identical distances totally incomparable. 114 M.C.C., at 611. The District Court held that the Commission had acted arbitrarily in so treating the evidence, for it had apparently relied on the applicants' transit-time evidence (id., at 586, 600) to support its finding of fitness. 364 F. Supp., at 1260–1261. Similarly, the District Court viewed as [p290] arbitrary the Commission's failure to mention in its opinion the service restrictions by applicants that appellees' had cited, since the Commission had relied upon identical restrictions practiced by appellees to support its finding that existing service was not satisfactory. 114 M.C.C., at 600.

The Commission's treatment of the evidence of the applicants' performance on other routes is not a paragon of clarity. Had the Commission responded in a more considered manner to the evidence appellees presented, review would have been greatly facilitated, and further review by this Court perhaps avoided entirely. But we can discern in the Commission's opinion a rational basis for its treatment of the evidence, and the "arbitrary and capricious' test does not require more. The question before the Commission was whether service on the routes at issue would be enhanced by permitting new entry, and as to this the performance by prospective entrants on new routes was of limited relevance. The Commission noted with respect to transit times that different highway conditions might make experience there a poor indication of the times applicants could provide on the routes they sought to enter. More generally, the applicants' performance on other routes might, because of market conditions peculiar to that route (e.g., the nature of demand for service, or the number of competing carriers), offer an inaccurate basis for predicting what the applicants would do if admitted to the routes they sought in competition with the carriers already there. A carrier performing lethargically on a route where it was the sole provider of motor transportation, for example, could ill afford to continue the same practice where the situation was more competitive.

[p291] The particular features of the applicants' performance elsewhere that the appellees cited were not shown by the Commission to be explainable by special market conditions on the routes where they occurred. It is said that the Commission could conclude that the evidence of performance elsewhere would be unlikely to prove dispositive, and that accordingly, absent some compelling demonstration by a proponent of a "performance elsewhere" study that it offered important predictive value, the Commission should disregard such evidence. Of course, evidence of especially egregious performance elsewhere might have been viewed as an exception; a general assumption that competition would force new entrants to exceed the pre-existing quality of service in an effort to attract business might have to yield in the face of an applicant whose shortcomings elsewhere were many and flagrant. But no such evidence was offered here, and none of the applicants was so characterized. Indeed the examiners found [p292] that "in the main the carriers participating in these proceedings are substantial and responsible carriers" (2 App. 878), and no party has disputed this finding. We do not find the Commission's treatment of the evidence arbitrary.

II
Having found that the admission of the applicant carriers to the routes they sought would produce benefits to the consumers served, the Commission proceeded to consider the effect of new entry upon the appellees. While the Commission acknowledged that competition from new entrants might cause at least short-run business losses for existing carriers, it found that, with the exception of one carrier, none would be "seriously adversely affected." Further, the Commission concluded that in any event, "the gains to be derived by the shipping public in general far outweigh any adverse effect this carrier or any other protestant may experience." 114 M.C.C., at 611.

The District Court thought the Commission's treatment unsupportable, in view of the findings by the hearing examiners as to adverse impacts if the applications were granted. 364 F. Supp., at 1262–1263. Insofar as the District Court's comments express the view that the Commission failed to consider the examiners' findings or the appellees' interests, the record shows otherwise. The Commission stated in its opinion that "grants of authority will subject some of protestants' traffic to the possibility of diversion," but went on to make findings that there would be no "serious adverse impact." 114 M.C.C., at 610–611.

The evidence that moved the examiners to a contrary view consisted of testimony by appellees' witnesses about the volume of shipments for which new entrants would compete if allowed to enter the market. The testimony thus presented the carriers' maximum potential exposure, [p293] leaving considerable leeway for predicting what was likely if applications were granted. Cf. Market Street R. Co. v. Railroad Comm'n, 324 U.S. 548 (1945). The examiners emphasized the magnitude of potential harm; the Commission took a more optimistic view. We see nothing arbitrary in this posture. That a carrier's entire business will be subject to competition hardly compels the conclusion that its operations will show no profit. It was rational for the Commission so to conclude that the new entrant may be expected not to swallow up existing carriers, especially if the latter make efforts to attract business. Moreover, the testimony offered by appellees' witnesses gave the carriers' exposure to competition if every new application sought by appellees were granted. Thus, the examiners were reporting upon potential diversions of traffic under conditions that were never realized. Since the Commission granted only three of the 10 pending applications, much of the testimony on this matter had to be regarded with qualification, and some of it disregarded entirely.

The Commission's conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed "the public convenience and necessity." United States v. Pierce Auto Lines, 327 U.S. 515, 535–536 (1946). If the Commission has "drawn out and [p294] crystallized these competing interests [and] attempted to judge them with as much delicacy as the prospective nature of the inquiry permits," ICC v. J-T Transport Co., 368 U.S. 81, 89 (1961), we can require no more. Here the Commission identified the competing interests. We cannot say that the balance it struck was arbitrary or contrary to law.

III
The District Court expressed concern about the considerable lapse of time between the conclusion of evidentiary hearings and the Commission's decision. 364 F. Supp., at 1261–1262. While it is unclear whether this was an independent ground for setting aside the Commission's order, we deem it advisable to deal directly with the suggestion that the record has grown too stale to support the order.

Hearings on the applications in these cases began in 1966 and concluded in 1967. Thereafter, the parties prepared extensive briefs for the examiners, who rendered their decision in November 1969. The decision of the Commission was handed down on December 30, 1971. Thus, the evidentiary material pertained to service conditions which were dated by five years at the time the Commission rendered its decision.

We appreciate the difficulties that arise when the lapse between hearing and ultimate decision is so long. Undoubtedly economic changes dated the 1966 studies that the parties, both applicants and appellees, had placed in the record. Nevertheless, we have always been loath to require that factfinding begin anew merely because of delay in proceedings of such magnitude and complexity. To repeat what was said in ICC v. Jersey City, 322 U.S. 503, 514–515 (1944):

"Administrative consideration of evidence—particularly where the evidence is taken by an examiner, [p295] his report submitted to the parties, and a hearing held on their exceptions to it—always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order the would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body."

Only in Atchison, T. & S. F. R. Co. v. United States, 284 U.S. 248 (1932), did we remand a case for reopening of evidentiary proceedings; there the Commission's refusal to reopen in light of the economic metamorphosis brought on by the Great Depression led the Court to find an abuse of discretion. The same exceptional circumstances that compelled that disposition, however, have been found lacking in more recent cases. See United States v. Northern Pacific R. Co., 288 U.S. 490 (1933); Illinois Commerce Comm'n v. United States, 292 U.S. 474 (1934); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); ICC v. Jersey City, supra; United States v. Pierce Auto Lines, supra; Northern Lines Merger Cases, 396 U.S. 491 (1970). Illinois Commerce Comm'n v. United States, supra, is of particular relevance, for there the Court refused to compel the Interstate Commerce [p296] Commission to reopen for the inclusion of new economic studies a record already closed for a comparable period. We believe appellees failed to meet the heavy burden thrust upon them by our cases.

The protracted character of the proceedings resulted, not from bureaucratic inertia, but from the number and complexity of the issues and from the agency procedures that extended to the parties, in an effort to insure fairness in appearance as well as reality, and an opportunity to comment upon the proceedings at every stage. More than 900 witnesses testified in the original hearings, which consumed 150 days. At the conclusion the parties submitted briefs requiring seven months to prepare. The examiners' decision did not issue until nearly two years later. It is doubtful that the Commission could have made the record more current by judicial notice alone; while live testimony might not have been required, the Commission would at least have had to entertain evidence in affidavit form. Yet there would have been little assurance that at the conclusion of such a reopening, and the time required to digest the new material, the record would not again have become "stale." Accordingly, we conclude that there is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances. [p297]

IV
We conclude by addressing a concern voiced by the District Court, that the Commission's decision

"indicates a predilection to grant these particular applications, followed by a strained attempt to marshal findings to support such conclusion." 364 F. Supp., at 1264.

We disagree with the District Court insofar as its remarks charge the Commission with prejudging the issue and deciding without giving consideration to the evidence. But we think the approach adopted by the Commission does differ from that taken by the examiners in significant respects that are important to identify.

The examiners viewed the evidence against a backdrop of assumptions about the relationship between consumer needs and carrier responsibilities. The examiners ruled, for example, that all shippers were not entitled to "single-line service" and that the shippers' difficulties were attributable, in part, to lack of diligence. The examiners put it that

"[n]ormally existing carriers should have an opportunity to transport all of the traffic they can handle adequately and efficiently in the territory they are authorized to serve without the competition of new operations."

And to the extent that service inadequacies were demonstrated, the examiners viewed complaints to force compliance with certificates held by existing carriers as a preferred mode of relief.

The Commission's approach, on the other hand, was more congenial to new entry and the resulting competition. This is the Commission's prerogative in carrying out its mandate to insure "safe, adequate, economical, and efficient service," National Transportation Policy, [p298] preceding 49 U.S.C. § 1. The Commission was not compelled to adopt the same approach as the examiners. It could conclude that the benefits of competitive service to consumers might outweigh the discomforts existing certificated carriers could feel as a result of new entry. Our decisions have dispelled any notion that the Commission's primary obligation is the protection of firms holding existing certificates. ICC v. J-T Transport Co., supra, disapproved the proposition that shippers must take their grievances through complaint procedures before improvement through new entry is permitted. 368 U.S., at 91. And in United States v. Dixie Highway Express, 389 U.S. 409 (1967), we rejected the suggestion by a reviewing court that existing carriers have "a property right" to an opportunity to make amends before new certificates issue. Id., at 411.

A policy in favor of competition embodied in the laws has application in a variety of economic affairs. Even where Congress has chosen Government regulation as the primary device for protecting the public interest, a policy of facilitating competitive market structure and performance is entitled to consideration. McLean Trucking Co. v. United States, 321 U.S. 67 (1944); FMC v. Svenska Amerika Linien, 390 U.S. 238 (1968); Gulf States Utilities Co. v. FPC, 411 U.S. 747 (1973); Denver & R. G. W. R. Co. v. United States, 387 U.S. 485 (1967). The Commission, of course, is entitled to conclude that preservation of a competitive structure in a given case is overridden by other interests, [p299] United States v. Drum, 368 U.S. 370, 374–375 (1962), but where, as here, the Commission concludes that competition "aids in the attainment of the objectives of the national transportation policy," McLean Trucking Co. v. United States, supra, at 85–86, we have no basis for disturbing the Commission's accommodation.

V
Our opinion disposes of appellees' objections to the Commission's order insofar as it granted the applications of Johnson and Red Ball. As to appellant Bowman, however, an issue remains. In granting Bowman a certificate the Commission noted that the authority sought by Bowman exceeded that set forth in Bowman's application. The "excess" was granted, subject to a condition precedent of publication in the Federal Register of Bowman's request for the excess authority. Various appellees filed objections to the augmented authority sought by Bowman, which the Commission overruled. Appellees challenged the Commission's procedure in the District Court on a variety of grounds, and though the District Court indicated disapproval of the Commission's action, the court did not have to rule on the merits of appellees' objections since it set aside the Commission's approval of all the applications.

While we have on occasion decided residual issues in the interest of an expeditious conclusion of protracted litigation, see Consolo v. FMC, 383 U.S. 607, 621 (1966), we believe that the issue of conformity of the Bowman certificate to its application is one for the District Court. The issue was not briefed or argued here, owning to the limitations set forth in our order noting probable jurisdiction. And while the District Court spoke of the Commission's [p300] action in this regard, we do not construe its expressions as a final ruling, since they were unnecessary to the District Court's disposition of the case. Accordingly, the issue remains open on remand.

We hasten to add, however, that our remand provides no basis for depriving Bowman of authority conferred by the Commission that was within its original application.

Reversed and remanded.

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text:
Wood v. Strickland

Respondent Arkansas high school students, who had been expelled from school for violating a school regulation prohibiting the use or possession of intoxicating beverages at school or school activities, brought suit under 42 U.S.C. § 1983 against petitioner school officials, claiming that such expulsions infringed respondents' rights to due process and seeking damages and injunctive and declaratory relief. The District Court directed verdicts for petitioners on the ground that they were immune from damages suits absent proof of malice in the sense of ill will toward respondents. The Court of Appeals, finding that the facts showed a violation of respondents' rights to "substantive due process," since the decisions to expel respondents were made on the basis of no evidence that the regulation had been violated, reversed and remanded for appropriate injunctive relief and a new trial on the question of damages. Held:

1. While on the basis of common-law 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 [p309] 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.

, J., delivered the opinion of the Court, in Parts I, III, and IV of which all other Members joined, and in Part II of which and, JJ., joined. , J., filed an opinion concurring in part and dissenting in part, in which, C.J., and and , JJ., joined, post, p. 327.

G. Ross Smith argued the cause for petitioners. With him on the brief was Herschel H. Friday.

Ben Core argued the cause and filed a brief for respondents.

title: Wood v. Strickland


text: Talk:Wood v. Strickland

title: Talk:Wood v. Strickland


text:
Wood v. Strickland/Opinion of the Court

delivered the opinion of the Court.

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., purporting to assert a cause of action  [p310] 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 relief 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 [p311] for compensatory damages under 42 U.S.C. § 1983 was the correct one. 416 U.S. 935 (1974).

I
The violation of the school regulation 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.

[p312] 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 board subsequently agreed to hold another meeting [p313] on the matter, and one was held approximately two weeks after the first meeting. The girls, their parents, and their counsel attended this session. The board began with a reading of a written statement of facts as it had found them. The girls admitted mixing the malt liquor into the punch with the intent of "spiking" it, but asked the board to forgo its rule punishing such violations by such substantial suspensions. Neither Mrs. Powell nor Waller was present at this meeting. The board voted not to change its policy and, as before, to expel the girls for the remainder of the semester.

II
The District Court instructed the jury that a decision for respondents had to be premised upon a finding that [p314] 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 (1974). We essentially sustain the position of the Court of Appeals with respect to the immunity issue.

[p315] The nature of the immunity from awards of damages under § 1983 available to school administrators and school board members is not a question which the lower federal courts have answered with a single voice. There is general agreement on the existence of a "good faith" immunity, but the courts have either emphasized different factors as elements of good faith or have not given specific content to the good-faith standard. 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'', 425 F.2d 10, 15 (CA7), cert. denied, 400 U.S. 826 (1970). In Smith v. Losee, 485 F.2d 334, 344 (CA10 1973) (en banc), cert. denied, 417 U.S. 908 (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), [p316] 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 (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 (Ore. 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 (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 (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 (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).

[p316] This Court has decided three cases dealing with the scope of the immunity protecting various types of governmental officials from liability for damages under § 1983. In Tenney v. Brandhove, 341 U.S. 367 (1951), the question was found to be one essentially of statutory construction. Noting that the language of § 1983 is silent with [p317] respect to immunities, the Court concluded that there was no basis for believing that Congress intended to eliminate the traditional immunity of legislators from civil liability for acts done within their sphere of legislative action. That immunity, "so well grounded in history and reason " 341 U.S., at 376, was absolute and consequently did not depend upon the motivations of the legislators. In Pierson v. Ray, 386 U.S. 547, 554 (1967), finding that "[t]he legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities" in enacting § 1983, we concluded that the common-law doctrine of absolute judicial immunity survived. Similarly, § 1983 did not preclude application of the traditional rule that a policeman, making an arrest in good faith and with probable cause, is not liable for damages, although the person arrested proves innocent. Consequently the Court said: "Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied." 386 U.S., at 555 (footnote omitted). Finally, last Term we held that the chief executive officer of a State, the senior and subordinate officers of the State's National Guard, and the president of a state-controlled university were not absolutely immune from liability under § 1983, but instead were entitled to immunity, under prior precedent and in light of the obvious need to avoid discouraging effective official action by public officers charged with a considerable range of responsibility [p318] and discretion, only if they acted in good faith as defined by the Court:

"[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 (1974).

Common-law tradition, recognized in our prior decisions, and strong public-policy reasons also lead to a construction of § 1983 extending a qualified good-faith immunity to school board members from liability for damages under that section. Although there have been differing emphases and formulations of the common-law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good-faith nonmalicious action taken to fulfill their official duties.

[p319] 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. "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, at 246 (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.

Liability for damages for every action which is found subsequently to have been violative of a student's constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties. School board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. Denying any measure of immunity in these circumstances "would contribute not to principled and fearless decision-making but to intimidation." Pierson v. Ray, supra, at 554. The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the [p320] most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students. The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure.

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. 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 [p321] 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 (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. [p322] 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. 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.

III
The Court of Appeals based upon its review of the facts but without the benefit of the transcript of the testimony given at the four-day trial to the jury in the District [p323] Court, found that the board had made its decision to expel the girls on the basis of no evidence that the school regulation had been violated:

"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 (1960), 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. The record reveals that the decision of the Court of Appeals [p324] 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 statutes which restrict the term to beverages with an alcoholic content exceeding 5% by weight. 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." The adoption [p325] of the regulation was at a time when the school board was concerned with a previous beer-drinking episode. It was applied prior to respondents' case to another student charged with possession of beer. 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. The girls themselves admitted knowing at the time of the incident that they were doing something wrong which might be punished. 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 (1972).

When the regulation is construed to prohibit the use and possession of beverages containing alcohol, there was no absence of evidence before the school board to prove the charge against respondents. The girls had admitted that they intended to "spike" the punch and that they had mixed malt liquor into the punch that was served. The third girl estimated at the time of their admissions to Waller that the malt liquor had an alcohol content of 20%. After the expulsion decision had been made and this  [p326] litigation had begun, it was conclusively determined that the malt liquor in fact had an alcohol content not exceeding 3.2% by weight. Testimony at trial put the alcohol content of the punch served at 0.91%.

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 (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Goss v. Lopez, 419 U.S. 565 (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 (1968); Tinker, supra, at 507.

IV
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 [p327] 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.

So ordered.

title: Wood v. Strickland/Opinion of the Court


text:
Wood v. Strickland/Concurrence-dissent Powell

, with whom, and join, concurring in part and dissenting in part.

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 holding of the Court on the immunity issue is set forth in the margin. "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 [p328] 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 (1967).] 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. It would impose personal [p328] liability on a  school official who acted sincerely and in the utmost good faith, but who was found—after the fact—to have acted in "ignorance  of settled, indisputable law." Ante, at 321. Or, as the Court also puts it, the school official must be held to a standard of conduct based not only on good faith "but also on knowledge of the basic, unquestioned constitutional rights of his charges." Ante, at 322. Moreover, ignorance of the law is explicitly equated with "actual malice." Ante, at 321. [p329] This harsh standard, requiring knowledge of what is characterized as "settled, indisputable law," leaves little substance to the doctrine of qualified immunity. The Court's decision appears to rest on an unwarranted assumption as to what lay school officials know or can know about the law and constitutional rights. These officials will now act at the peril of some judge or jury subsequently finding that a good-faith belief as to the applicable law was mistaken and hence actionable.

The Court states the standard of required knowledge in two cryptic phrases: "settled, indisputable law" and "unquestioned constitutional rights." Presumably these are intended to mean the same thing, although the meaning of neither phrase is likely to be self-evident to constitutional law scholars—much less the average school board member. One need only look to the decisions of this Court—to our reversals, our recognition of evolving concepts, and our five-to-four splits—to recognize the hazard of even informed prophecy as to what are "unquestioned constitutional rights." Consider, for example, the recent five-to-four decision in Goss v. Lopez, 419 U.S. 565 (1975), holding that a junior high school pupil routinely suspended for as much as a single day is entitled to due process. I suggest that most lawyers and judges would have thought, prior to that decision, that the law to the contrary was settled, indisputable, and unquestioned.

[p330] Less than a year ago, in Scheuer v. Rhodes, 416 U.S. 232 (1974), and in an opinion joined by all participating members of the Court, a considerably less demanding standard of liability was approved with respect to two of the highest officers of the State, the Governor and Adjutant General. In that case, the estates of students killed at Kent State University sued these officials under § 1983. After weighing the competing claims, the Court concluded:

"These considerations suggest that, in 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." 416 U.S., at 247—248. (Emphasis added.)

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 [p331] applied to the Governor of a State charged with maliciously calling out National Guardsmen who killed and wounded Kent State students. 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.


text:
Page:Literary Lapses - Leacock - 1919.djvu/30

boarding-houses are the same boarding-house.

Boarders in the same boarding-house and on the same flat are equal to one another.

A single room is that which has no parts and no magnitude.

The landlady of a boarding-house is a parallelogram—that is, an oblong angular figure, which cannot be described, but which is equal to anything.

A wrangle is the disinclination of two boarders to each other that meet together but are not in the same line.

All the other rooms being taken, a single room is said to be a double room.

A pie may be produced any number of times.


text:
Page:International Criminal Court Act 2001 (UKPGA 2001-17 qp).pdf/38

34 Part 5—Offences under domestic law (2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be) his effective authority and control, as a result of his failure to exercise control properly over such forces where—
 * (a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences, and
 * (b) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is responsible for offences committed by subordinates under his effective authority and control, as a result of his failure to exercise control properly over such subordinates where—
 * (a) he either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such offences,
 * (b) the offences concerned activities that were within his effective responsibility and control, and
 * (c) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(4) A person responsible under this section for an offence is regarded as aiding, abetting, counselling or procuring the commission of the offence.

(5) In interpreting and applying the provisions of this section (which corresponds to article 28) the court shall take into account any relevant judgment or decision of the ICC.

Account may also be taken of any other relevant international jurisprudence.

(6) Nothing in this section shall be read as restricting or excluding—
 * (a) any liability of the commander or superior apart from this section, or
 * (b) the liability of persons other than the commander or superior.

66Mental element

(1) References in this Part to a person committing—
 * (a) genocide,
 * (b) a crime against humanity,
 * (c) a war crime, or
 * (d) any of the acts mentioned in article 70.1 (offences against the admninistrationadministration [sic] of justice in relation to the ICC),

shall be construed in accordance with this section.

(2) Unless otherwise provided by—
 * (a) the articles mentioned in the definition in section 50(1) of the crimes specified in subsection (1)(a) to (c) above, or any relevant Elements of Crimes (see section 50(2)),
 * (b) section 54(1) or 61(1) or article 70.1 (offences in relation to the ICC), or
 * (c)section 65 (responsibility of commanders and other superiors),


text:
Page:Literary Lapses - Leacock - 1919.djvu/31

  The landlady can be reduced to her lowest terms by a series of propositions.

A bee line may be made from any boarding-house to any other boarding-house.

The clothes of a boarding-house bed, though produced ever so far both ways, will not meet.

Any two meals at a boarding-house are together less than two square meals.

If from the opposite ends of a boarding-house a line be drawn passing through all the rooms in turn, then the stovepipe which warms the boarders will lie within that line.

On the same bill and on the same side of it there should not be two charges for the same thing.

If there be two boarders on the same flat, and the amount of side of the one be equal to the amount of side of the other, each to each, and the wrangle between one boarder and the landlady be equal to the wrangle between the landlady and the other, then shall the weekly bills of the two boarders be equal also, each to each.

For if not, let one bill be the greater.

Then the other bill is less than it might have been—which is absurd.


text:
Page:International Criminal Court Act 2001 (UKPGA 2001-17 qp).pdf/39

International Criminal Court Act 2001 (c. 17) Part 5—Offences under domestic law a person is regarded as committing such an act or crime only if the material elements are committed with intent and knowledge.

(3) For this purpose—
 * (a) a person has intent—
 * (i) in relation to conduct, where he means to engage in the conduct, and
 * (ii) in relation to a consequence, where he means to cause the consequence or is aware that it will occur in the ordinary course of events; and
 * (b) “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.

(4) In interpreting and applying the provisions of this section (which corresponds to article 30) the court shall take into account any relevant judgment or decision of the ICC.Account may also be taken of any other relevant international jurisprudence.

67Meaning of “UK national”, “UK resident” and “person subject to UK service jurisdiction”

(1) In this Part a“United Kingdom national” means an individual who is—
 * (a) a British citizen, a British Dependent Territories citizen, a British National (Overseas) or a British Overseas Citizen,
 * (b) a person who under the British Nationality Act 1981 (c. 61) is a British subject, or
 * (c) a British protected person within the meaning of that Act.

(2) In this Part a “United Kingdom resident” means a person who is resident in the United Kingdom.

(3) In this Part a “person subject to UK service jurisdiction” means—
 * (a) a person subject to military law, air force law or the Naval Discipline Act 1957 (c. 53);
 * (b) any such person as is mentioned in section 208A or 209(1) or (2) of the Army Act 1955 (c. 18) or the Air Force Act 1955 (c. 19) (application of Act to passengers in HM ships and aircraft and to certain civilians); or
 * (c) any such person as is mentioned in section 117 or 118 of the Naval Discipline Act 1957 (application of Act to passengers in HM ships and to certain civilians).

68Proceedings against persons becoming resident within the jurisdiction

(1) This section applies in relation to a person who commits acts outside the United Kingdom at a time when he is not a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction and who subsequently becomes resident in the United Kingdom.

(2) Proceedings may be brought against such a person in England and Wales or Northern Ireland for a substantive offence under this Part if—
 * (a) he is resident in the United Kingdom at the time the proceedings are brought, and


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36 Part 5—Offences under domestic law :(b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.

(3) Proceedings may be brought against such a person in England and Wales or Northern Ireland for an offence ancillary to a substantive offence under this Part (or what would be such a substantive offence if committed in that part of the United Kingdom) if—
 * (a) he is resident in the United Kingdom at the time the proceedings are brought, and
 * (b) the acts in respect of which the proceedings are brought would have constituted that offence if they had been committed in that part of the United Kingdom.

(4) In this section a “substantive offence” means an offence other than an ancillary offence.

(5) Nothing in this section shall be read as restricting the operation of any other provision of this Part.

69References to acts to include omissions, etc

In this Part “act”, except where the context otherwise requires, includes an omission, and references to conduct have a corresponding meaning. Consequential provisions 70Offences under section 1 of the Geneva Conventions Act 1957

(1) In section 1 of the Geneva Conventions Act 1957 (c. 52) (punishment of grave breaches of the conventions)—
 * (a) in subsection (1), omit the words from “and on conviction on indictment” to the end; and
 * (b) omit subsections (3) to (5).

(2) After that section insert—
 * “1ATrial and punishment of offences under s.1
 * (1) The following provisions apply in relation to offences under section 1 of this Act.
 * (2) The offence is triable only on indictment.
 * (3) Proceedings for an offence shall not be instituted—
 * (a) in England and Wales, except by or with the consent of the Attorney General;
 * (b) in Northern Ireland, except by or with the consent of the Attorney General for Northern Ireland.
 * (4) If the offence is not committed in the United Kingdom—
 * (a) proceedings may be taken, and
 * (b) the offence may for incidental purposes be treated as having been committed,in any place in the United Kingdom.


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people—not you nor I, because we are so awfully self-possessed—but some people, find great difficulty in saying good-bye when making a call or spending the evening. As the moment draws near when the visitor feels that he is fairly entitled to go away he rises and says abruptly, “Well, I think I Then the people say, “Oh, must you go now? Surely it’s early yet!” and a pitiful struggle ensues.

I think the saddest case of this kind of thing that I ever knew was that of my poor friend Melpomenus Jones, a curate—such a dear young man, and only twenty-three! He simply couldn’t get away from people. He was too modest to tell a lie, and too religious to wish to appear rude. Now it happened that he went to call on some friends of his on the very first afternoon of his summer vacation. The next six weeks were entirely his own—absolutely nothing to do. He chatted awhile, drank two cups of tea, then braced himself for the effort and said suddenly:


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International Criminal Court Act 2001 (c. 17) Part 5—Offences under domestic law :(5) A person convicted of an offence involving murder shall be dealt with as for an offence of murder.In this subsection “murder” means the killing of a person in such circumstances as would constitute murder if committed in the part of the United KingdonKingdom [sic] in which the proceedings are brought.
 * (6) In any other case a person convicted of an offence is liable to imprisonment for a term not exceeding 30 years.”.

(3) The above amendments do not apply in relation to offences committed before the commencement of this section.

71Extradition: Orders in Council under the 1870 Act

(1) This section applies in relation to extradition under Schedule 1 to the Extradition Act 1989 (c. 33) (extradition where an Order in Council under section 2 of the Extradition Act 1870 (c. 52) is in force in relation to the foreign state).

(2) The offences to which such an Order in Council can apply include any Part 5 offence.

(3) “Part 5 offence” means—
 * (a) an offence under section 51 or 58 (genocide, crimes against humanity and war crimes),
 * (b) an offence under section 52 or 59 (conduct ancillary to genocide etc. committed outside the jurisdiction), or
 * (c) an ancillary offence in relation to any such offence.

(4) For the purposes of Schedule 1 to the 1989 Act, conduct, wherever committed, which constitutes—
 * (a) a Part 5 offence, and
 * (b) an offence against the law of any state in relation to which that Schedule has effect,

shall be deemed to be an offence committed within the jurisdiction of that state.

(5) If any conduct would constitute a Part 5 offence if committed in the United Kingdom then, notwithstanding that it does not constitute such an offence—
 * (a) a person whose surrender is sought in respect of that conduct may be surrendered by the United Kingdom in pursuance of an Order in Council to which subsection (2) applies, and
 * (b) subsection (4) applies to the conduct as if it constituted a Part 5 offence.

(6) References in this section to an offence under any provision of this Part, or to an offence ancillary to such an offence, include any corresponding offence under the law of Scotland.

72Extradition: exception to dual criminality rule under the 1989 Act

(1) Section 2 of the Extradition Act 1989 (meaning of “extradition crime”) is amended as follows.

(2) In subsection (1)(b) (extra-territorial offences), after sub-paragraph (ii) add—
 * “, or
 * (iii) the condition specified in subsection (3A) below.”.


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  “Well, I think I

But the lady of the house said, “Oh, no! Mr. Jones, can’t you really stay a little longer?”

Jones was always truthful. “Oh, yes,” he said, “of course, I—er—can stay.”

“Then please don’t go.”

He stayed. He drank eleven cups of tea. Night was falling. He rose again.

“Well now,” he said shyly, “I think I really

“You must go?” said the lady politely. “I thought perhaps you could have stayed to dinner

“Oh well, so I could, you know,” Jones said, “if

“Then please stay, I’m sure my husband will be delighted.”

“All right,” he said feebly, “I’ll stay,” and he sank back into his chair, just full of tea, and miserable.

Papa came home. They had dinner. All through the meal Jones sat planning to leave at eight-thirty. All the family wondered whether Mr. Jones was stupid and sulky, or only stupid.

After dinner mamma undertook to “draw him out,” and showed him photographs.


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  She showed him all the family museum, several gross of them—photos of papa’s uncle and his wife, and mamma’s brother and his little boy, an awfully interesting photo of papa’s uncle’s friend in his Bengal uniform, an awfully well-taken photo of papa’s grandfather’s partner’s dog, and an awfully wicked one of papa as the devil for a fancy-dress ball.

At eight-thirty Jones had examined seventy-one photographs. There were about sixty-nine more that he hadn’t. Jones rose.

“I must say good night now,” he pleaded.

“Say good night!” they said, “why it’s only half-past eight! Have you anything to do?”

“Nothing,” he admitted, and muttered something about staying six weeks, and then laughed miserably.

Just then it turned out that the favourite child of the family, such a dear little romp, had hidden Mr. Jones’s hat; so papa said that he must stay, and invited him to a pipe and a chat. Papa had the pipe and gave Jones the chat, and still he stayed. Every moment he meant to take the plunge, but couldn’t. Then papa began to get very tired of Jones, and fidgeted and finally said, with jocular


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38 Part 5—Offences under domestic law (3) After subsection (3) insert—
 * “(3A) The condition mentioned in subsection (1)(b)(iii) above is that the conduct constituting the offence constitutes or, if committed in the United Kingdom would constitute—
 * (a) an offence under section 51 or 58 of the International Criminal Court Act 2001 (genocide, crimes against humanity and war crimes),
 * (b) an offence under section 52 or 59 of that Act (conduct ancillary to genocide etc. committed outside the jurisdiction), or
 * (c) an ancillary offence, as defined in section 55 or 62 of that Act, in relation to any such offence.”.

(4) After subsection (4) add—
 * “(5) References in this section to an offence under any provision of the International Criminal Court Act 2001, or to an offence ancillary to such an offence, include any corresponding offence under the law of Scotland.”.

73Extradition: offences not regarded as of political character etc

(1) For section 23 of the Extradition Act 1989 (c. 33) (genocide, etc.) substitute—
 * “23Genocide, crimes against humanity and war crimes
 * (1) This section applies to—
 * (a) any offence that if committed in the United Kingdom would be punishable as—
 * (i) an offence under section 51 or 58 of the International Criminal Court Act 2001 (genocide, crimes against humanity and war crimes),
 * (ii) an offence under section 52 or 59 of that Act (conduct ancillary to genocide, etc. committed outside the jurisdiction), or
 * (iii) an ancillary offence, as defined in section 55 or 62 of that Act, in relation to any such offence as is mentioned in sub-paragraph (i) or (ii); and
 * (b) any offence punishable in the United Kingdom under section 1 of the Geneva Conventions Act 1957 (grave breach of scheduled conventions).
 * (2) For the purposes of this Act—
 * (a) an offence to which this section applies shall not be regarded as an offence of a political character, and
 * (b) no proceedings in respect of such an offence shall be regarded as a criminal matter of a political character.
 * (3) It is not an objection to proceedings against a person in respect of an offence to which this section applies that under the law in force at the time when and in the place where he is alleged to have committed the


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  irony, that Jones had better stay all night, they could give him a shake-down. Jones mistook his meaning and thanked him with tears in his eyes, and papa put Jones to bed in the spare room and cursed him heartily.

After breakfast next day, papa went off to his work in the City, and left Jones playing with the baby, broken-hearted. His nerve was utterly gone. He was meaning to leave all day, but the thing had got on his mind and he simply couldn’t. When papa came home in the evening he was surprised and chagrined to find Jones still there. He thought to jockey him out with a jest, and said he thought he’d have to charge him for his board, he! he! The unhappy young man stared wildly for a moment, then wrung papa’s hand, paid him a month’s board in advance, and broke down and sobbed like a child.

In the days that followed he was moody and unapproachable. He lived, of course, entirely in the drawing-room, and the lack of air and exercise began to tell sadly on his health. He passed his time in drinking tea and looking at the photographs. He would stand for hours gazing at the photographs of papa’s uncle’s friend in his Bengal uniform


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  talking to it, sometimes swearing bitterly at it. His mind was visibly failing.

At length the crash came. They carried him upstairs in a raging delirium of fever. The illness that followed was terrible. He recognized no one, not even papa’s uncle’s friend in his Bengal uniform. At times he would start up from his bed and shriek, “Well, I think I and then fall back upon the pillow with a horrible laugh. Then, again, he would leap up and cry, “Another cup of tea and more photographs! More photographs! Har! Har!”

At length, after a month of agony, on the last day of his vacation, he passed away. They say that when the last moment came, he sat up in bed with a beautiful smile of confidence playing upon his face, and said, “Well—the angels are calling me; I’m afraid I really must go now. Good afternoon.”

And the rushing of his spirit from its prison-house was as rapid as a hunted cat passing over a garden fence.


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International Criminal Court Act 2001 (c. 17) Part 5—Offences under domestic law : act of which he is accused, or of which he was convicted, he could not have been punished for it.
 * (4) References in this section to an offence under any provision of the International Criminal Court Act 2001, or to an offence ancillary to such an offence, include any corresponding offence under the law of Scotland.”.

(2) In the Backing of Warrants (Republic of Ireland) Act 1965 (c. 45), after section 6C insert—
 * “6DGenocide, crimes against humanity and war crimes
 * (1) This section applies to—
 * (a) any offence that if committed in the United Kingdom would be punishable as—
 * (i) an offence under section 51 or 58 of the International Criminal Court Act 2001 (genocide, crimes against humanity and war crimes),
 * (ii) an offence under section 52 or 59 of that Act (conduct ancillary to genocide, etc. committed outside the jurisdiction), or
 * (iii) an ancillary offence, as defined in section 55 or 62 of that Act, in relation to any such offence as is mentioned in sub-paragraph (i) or (ii); and
 * (b) any offence punishable in the United Kingdom under section 1 of the Geneva Conventions Act 1957 (grave breach of scheduled conventions).
 * (2) For the purposes of this Act—
 * (a) an offence to which this section applies shall not be regarded as an offence of a political character, and
 * (b) no proceedings in respect of such an offence shall be regarded as a criminal matter of a political character.
 * (3) It is not an objection to proceedings against a person in respect of an offence to which this section applies that under the law in force at the time when and in the place where he is alleged to have committed the act of which he is accused, or of which he was convicted, he could not have been punished for it.
 * (4) References in this section to an offence under any provision of the International Criminal Court Act 2001, or to an offence ancillary to such an offence, include any corresponding offence under the law of Scotland.”.

74Consequential amendments of armed forces legislation

(1) In section 70(3) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70(3) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) and section 42(1)(b) of the Naval Discipline Act 1957 (c. 53) (sentence on conviction by court-martial of offence where corresponding civil offence is murder), after “murder” insert “, or an offence for which a person convicted by a civil court is to be dealt with as for an offence of murder,”.


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40 Part 5—Offences under domestic law (2) In section 70(4) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70(4) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) and section 48(2) of the Naval Discipline Act 1957 (c. 53) (civil offences not triable by court-martial if committed in the United Kingdom)—
 * (a) after “rape” insert “or an offence under section 1 of the Geneva Conventions Act 1957”; and
 * (b) after “the Nuclear Explosions (Prohibition and Inspections) Act 1998” insert “or an offence under section 51 or 52 of the International Criminal Court Act 2001”.

(3) In section 70(5) of the Army Act 1955, section 70(5) of the Air Force Act 1955 and section 48(2) of the Naval Discipline Act 1957 (where offences involving killing are taken to have been committed), after “or manslaughter” insert “, or an offence under section 1 of the Geneva Conventions Act 1957 or section 51 of the International Criminal Court Act 2001 consisting of the killing of a person,”.

Interpretation 75Meaning of “national court” and “service court”

In this Act—
 * “national court” means a court in the United Kingdom or a service court; and
 * “service court” means—
 * (a) a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957,
 * (b) a disciplinary court constituted under section 52G of the Naval Discipline Act 1957,
 * (c) a Standing Civilian Court, or
 * (d) the Courts-Martial Appeal Court.

76Meaning of “British aircraft”, “British hovercraft” and “British ship”

(1) In this Act—
 * “British aircraft” means a British-controlled aircraft within the meaning of section 92 of the Civil Aviation Act 1982 (c. 16) (application of criminal law to aircraft), or one of Her Majesty’s aircraft;
 * “British hovercraft” means a British-controlled hovercraft within the meaning of that section as applied in relation to hovercraft by virtue of provision made under the Hovercraft Act 1968 (c .59), or one of Her Majesty’s hovercraft; and
 * “British ship” means a British ship within the meaning of the Merchant Shipping Act 1995 (c. 21), or one of Her Majesty’s ships.

(2) References in subsection (1) to Her Majesty’s aircraft, hovercraft or ships are to the aircraft, hovercraft or, as the case may be, ships which belong to, or are exclusively employed in the service of, Her Majesty in right of the government of the United Kingdom.


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,

Allow me very gratefully but firmly to refuse your kind invitation. You doubtless mean well; but your ideas are unhappily mistaken.

Let us understand one another once and for all. I cannot at my mature age participate in the sports of children with such abandon as I could wish. I entertain, and have always entertained, the sincerest regard for such games as Hunt-the-Slipper and Blind-Man’s Buff. But I have now reached a time of life, when, to have my eyes blindfolded and to have a powerful boy of ten hit me in the back with a hobby-horse and ask me to guess who hit me, provokes me to a fit of retaliation which could only culminate in reckless criminality. Nor can I cover my shoulders with a drawing-room rug and crawl round on my hands and knees under the pretence that I am a bear without a sense of personal insufficiency, which is painful to me.

Neither can I look on with a complacent


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International Criminal Court Act 2001 (c. 17) Part 6—General provisions Application and extent 77Application of provisions in relation to other International Tribunals

(1) Section 23 (provisions as to state or diplomatic immunity) applies in relation to proceedings under—
 * (a) the United Nations (International Tribunal) (Former Yugoslavia) Order 1996 (S.I. 1996/716), or
 * (b) the United Nations (International Tribunal) (Rwanda) Order 1996 (S.I. 1996/1296),

as it applies in relation to proceedings under Part 2 of this Act, with the following adaptations.

(2) The adaptations are—
 * (a) in subsection (1) omit the words “by reason of a connection with a state party to the ICC Statute”;
 * (b) omit subsections (2), (3) and (5);
 * (c) in subsection (4)—
 * (i) for the reference to the ICC substitute a reference to the relevant International Tribunal, and
 * (ii) omit the words “or (2)”.

(3) The provisions of sections 42 to 48 (enforcement of sentences of imprisonment) apply, with any necessary modifications, in relation to a sentence of imprisonment imposed by either of the International Tribunals to which the Orders mentioned in subsection (1) above apply as they apply in relation to a sentence of the ICC.

(4) The power conferred by section 1 of the United Nations Act 1946 (c. 45) (power to give effect by Order in Council to measures not involving the use of armed force) includes power to make in relation to any other tribunal of a similar character that may be established by resolution of the Security Council of the United Nations provision corresponding to that made in relation to the ICC by the provisions of this Act mentioned in subsection (1) or (3) above.

78Crown application

This Act binds the Crown and applies to persons in the public service of the Crown, and property held for the purposes of the public service of the Crown, as it applies to other persons and property.

79Extent

(1) The following provisions of this Act do not extend to Scotland—
 * (a) Part 3 (other forms of assistance), except section 32 (transfer of prisoner to give evidence or assist in investigation) and section 39 (production or disclosure prejudicial to national security);
 * (b) section 49 (power to make provision for enforcement of orders other than sentences of imprisonment);
 * (c) Part 5 (offences under domestic law), except—
 * section 50(3) (regulations setting out Elements of Crimes),
 * section 50(4) (Orders in Council specifying relevant reservations or declarations),


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  eye at the sad spectacle of your young clerical friend, the Reverend Mr. Uttermost Farthing, abandoning himself to such gambols and appearing in the role of life and soul of the evening. Such a degradation of his holy calling grieves me, and I cannot but suspect him of ulterior motives.

You inform me that your maiden aunt intends to help you to entertain the party. I have not, as you know, the honour of your aunt’s acquaintance, yet I think I may with reason surmise that she will organize games—guessing games—in which she will ask me to name a river in Asia beginning with a Z; on my failure to do so she will put a hot plate down my neck as a forfeit, and the children will clap their hands. These games, my dear young friend, involve the use of a more adaptable intellect than mine, and I cannot consent to be a party to them.

May I say in conclusion that I do not consider a five-cent pen-wiper from the top branch of a Xmas tree any adequate compensation for the kind of evening you propose.

I have the honour To subscribe myself, Your obedient servant.