For organizational purposes, registration is mandatory for any member of the press who wishes to attend Atlantia's Shareholders Meeting. In order to do so, please email your details (name and surname, date of birth, news organization, and press card number if you are currently employed by the italian media) to media.relations@atlantia.it by 5:00pm Wednesday April 17th.
Financial statements of Atlantia S.p.A. for the year ended on 31 December 2018. Reports of the Board of Directors, the Board of Statutory Auditors, and the Independent Auditors. Allocation of net profits and distribution of available reserves. Submission of consolidated financial statements for the year ended on 31 December 2018. Related and consequent resolutions.
Proposal to supplement the considerations paid for the Independent Auditors’ engagement for years 2018-2020. Related and consequent resolutions.
Authorisation, in accordance with and for the purposes of articles 2357 et seq. Of the Italian Civil Code, 132 of the Legislative Decree no. 58 dated 24 February 1998 (the “Consolidated Finance Act”), and 144-bis of the CONSOB Regulation adopted with resolution no. 11971/1999 (as subsequently amended) to purchase and sell treasury shares, subject to the prior revocation of the authorisation granted by the Ordinary General Meeting of 20 April 2018. Related and consequent resolutions.
Determination of the remuneration to be paid to members of the Board of Directors.
Resolution on the first section of the Remuneration Report in accordance with article 123-ter of the Consolidated Finance Act.
the BoD Report on item 4 (Appointment of the Board of Directors and determination of relevant remuneration: a) Determination of the number of members of the Board of Directors; b) Appointment of Directors for years 2019-2021; c) Appointment of the Chairman of the Board of Directors; d)Determination of the remuneration to be paid to members of the Board of Directors).
the BoD Report on item 2 (Proposal to supplement the considerations paid for the Independent Auditors’ engagement for years 2018-2020. Related and consequent resolutions).
the 2018 Integrated Report and Consolidated Non Financial Information Disclosure pursuant to D. Lgs. 254/2016, together with the relevant certification of the External Auditor in accordance with the provisions under Legislative Decree no. 254 dated December 30, 2016 and the relevant implementing Regulation adopted by Consob through the Resolution no. 20267 of January 18, 2018. It’s noted that such document, containing information relating to environmental, social, employee, respect for human rights, anti-corruption and bribery matters is submitted to the Shareholders’ Meeting only for informational purposes, not being it subject to the Shareholders’ Meeting approval since it falls within the competence of the Board of Directors.
the slates of lists of candidates for the office of Director and Chairman of the Board of Directors submitted by the Shareholders within 25 March 2019.
Only those persons may attend and vote at General Meeting who have been notified as having voting rights to the Company by an "intermediary" so authorised in accordance with applicable legislation; such notification having been issued in accordance with records at the close of business on 9 April 2019, being the seventh stock exchange trading day preceding the date set for the General Meeting on single call (the "Record Date"), in conformity with articles 83-sexies of Legislative Decree 58 of 24 February 1998 (the "Consolidated Financial Act”, or “CFA”).
Such notification by the intermediary must arrive no later than 15 April 2019, being the close of business of the third stock exchange trading day preceding the date set for the General Meeting on single call. The right to attend and vote at General Meeting, however, shall be valid to the extent that the relevant notice is received by the Company no later than the opening of the General Meeting.
The proxy, attesting and accepting personal liability for the conformity of the copy with the original and the identity of the proxy giver, may send a copy of the proxy form, duly completed and signed by the holder of the voting rights, directly to the Company by sending a fax to Computershare S.p.A. on +39 06- 45417450 or by sending an electronic version of the form to the certified e-mail address atlantia@pecserviziotitoli.it.
In accordance with the law, all holders of voting rights may, by completing the relevant form, appoint Computershare S.p.A., with registered office in Via Mascheroni 19, Milan, to act as their proxy, this company being the Company’s Appointed Representative pursuant to art. 135-undecies of Legislative Decree 58/98 (the Consolidated Financial Act), to which persons with voting rights my provide a proxy with voting instructions on any and all agenda items on 16 April 2019, being the close of business on the second stock exchange trading day preceding the date set for the General Meeting.
The proxy must be provided to the Appointed Representative by using the following proxy form: Proxy Form for the Appointed Representative [pdf] or by using the specific web application providing assistance in completing the proxy form with voting instructions prepared by Computershare S.p.A. in agreement with the Company and available at the following link: https://servizi.computershare.it/eRD/index.aspx?nos=00018042019 (which will be made available starting from the publication date of the slates of candidates for election to the Board of Directors).
It should be noted that, in the event of unforeseen circumstances, having regard to changes or additions to the proposals submitted to the General Meeting, Computershare S.p.A., acting as the Appointed Representative, and being responsible for managing the accreditation and vote counting procedures at the General Meeting, whilst not being subject to a conflict of interest, will not cast a vote that differs from the instructions received.
The original proxy form with voting instructions for the Appointed Representative, complete with the required information and signed by the person holding voting rights, must be delivered to Computershare S.p.A. at its offices in Via Monte Giberto 33, 00138 Rome no later than 16 April 2019 with regard to the General Meeting. A copy may be sent, by the same date, accompanied by a declaration of conformity to the original, via fax to +39 06-45417450 or by electronic version to the certified e-mail address to atlantia@pecserviziotitoli.it. If, for technical reasons, electronic versions of the proxy forms are not available, the forms may be requested by making a simple phone call to the following number: +39 06-45417413 (lines are open from Monday to Friday from 9.00am to 1.00pm and from 2.00pm to 6.00pm).
Pursuant to laws and regulations in force and art. 20 of the Articles of Association, election of the members of the Board of Directors shall take place on the basis of slates submitted by Shareholders, who, singly or jointly with other Shareholders, at the date on which the lists are deposited with the Company, represent at least 1% of the issued capital.
Each Shareholders has the right, singly or jointly with other Shareholders, to submit one slate only, and any candidate included in more than one slate shall be disqualified.
It’s noted that the exiting Board of Directors – albeit not intending to exercise the option of submitting its own list of candidates – has nonetheless issued, after a consultation with the Nominations’ Committee, its Guidance for Shareholders on the composition and size of the next Board of Directors, in accordance with article 1.6 of the Company’s Corporate Governance Code. Such Guidance is attached to the Board’s Report on item 4) and it’s available on the Company’s website (https://www.atlantia.it/en/corporate-governance/guidance_re-election_bod).
Each slate may contain no more than fifteen candidates, who must be assigned a sequential number.
Each slate must include at least two candidates who meet the independence requirements established by law and by the Company’s Corporate Governance Code (published on the Company’s website at http://www.atlantia.it/en/corporate-governance/articles-codes-procedures.html) and one of these must be entered in first place on the slate. More specifically, given that in Article 2.2 of the Company’s Corporate Governance Code the Company has implemented the independent directors’ principle provided under the Corporate Governance Code for listed companies, it is necessary that each slate comply with the need to contain an adequate number of independent Directors, in order to ensure that at least a third of the members of the Board of Directors are independents. Moreover, it’s noted that the exiting Board of Directors – in its above mentioned Guidance for Shareholders – pointed out that a composition of the new Board of Directors which can be regarded as adequate in relation to the purposes indicated in the Guidance itself implies a presence of independent directors – pursuant to the Consolidated Finance Act and Company’s Corporate Governance Code – equal to at least 8 members (out of 15).
Slates containing a number of candidates equal to or higher than three must also indicate at least a third of the candidates belonging to the least represented gender in application of Law 120 of 12 July 2011.
an indication of the identities of the Shareholders who have submitted the slates and their total percentage shareholding.
In addition, in compliance with the provisions of CONSOB Ruling DEM/9017893 of 26 February 2009, minority slates must be accompanied by a declaration certifying the absence of any association, indirect or otherwise, as defined by art. 147-ter, paragraph 3 of the CFA and art. 144-quinquies of the Regulations adopted with CONSOB Resolution 11971 of 14 May 1999, with Shareholders that hold, either singly or jointly, a controlling or relative majority interest, as defined by the regulations in force; the declaration must also specify any existing relations, where significant, with Shareholders that hold, either singly or jointly, a controlling or relative majority interest, where identifiable, and the reasons for which these relations are not considered as determining the existence of the above association, or an indication of the absence of any such relations.
Any slate that do not comply with the above requirements will be considered to have not been submitted.
the other Directors shall be taken from the other slates that are not in any manner connected, even indirectly, with the shareholders who submitted or voted for the slate that obtained the most votes. For this purpose, the votes cast for those other slates shall be successively divided by one, two, three up to the number of Directors to be elected. The resultant quotients shall be allocated to the candidates on each slate who shall then be ranked in decreasing order by the total quotients allocated to them: the candidates elected shall be those with the highest quotients, provided that the required balance between the gender quotas has been complied with.
if, following the vote and the above procedures, legislation concerning the balance between the gender quotas elected has not been complied with, the candidates which would result to be in the various slates shall be disposed in one single decreasing ranking list, based on the quotients calculated in accordance with the procedure described in letter c). The candidate in such ranking list from the most represented gender having the lowest quotient in the ranking shall thus be replaced by the first of the candidates from the least represented gender to not be elected and belonging to the same slate. If there are no other candidates in this slate, the above replacement shall be approved by the General Meeting with the majority required by law.
If replacement of the candidate from the most represented gender with the lowest quotient in the ranking does not, however, enable the minimum quota required by the legislation in force to be reached, the above replacement process shall also be applied to the candidate from the most represented gender with the penultimate quotient, and so on rising from the lowest ranked candidate.
In the event that there are candidates with equal quotients, that candidate on the slate from which no Director has already been elected or with the lowest number of Directors elected, shall be elected, provided that the applicable laws concerning the balance between gender quotas have been complied with. In the event of a tie of list votes, and, therefore, equal quotients, the General Meeting shall hold a new election and the candidate receiving the majority of votes shall be elected.
If only one slate is submitted, or if no slates are submitted, or if, for any reason, it is not possible to appoint one or more Directors in accordance with this article, the General Meeting shall decide with the majority required by law, ensuring in any event that the necessary number of Directors meet the independence requirements established by law and that the applicable laws concerning the balance between gender quotas have been complied with.
The slates submitted by Shareholders, together with information enabling identification of the persons depositing the slates and the further documentation required by the laws and regulations in force, must be filed by 24 March 2019, to be extended to 25 March 2019, which is the first following working day, at the registered office of the Company, or sent by certified electronic mail to atlantia@pecserviziotitoli.it.
The Company will make the slates available to the public by 28 March 2019 at its registered office, on the present section of the Company’s website and on the storage platform called 1Info (www.1Info.it).
Information pursuant to articles 13 and 14 of the Regulation (EU) 2016/679 (“GDPR”) in relation to the candidacy for the office of Director.
Atlantia S.p.A., with registered office in Via A. Nibby, 20, 00161 Rome, in its capacity as controller, would like to inform you, under articles 13 and 14 of the Regulation (EU) 2016/679 – General Data Protection Regulation (the “Regulation”), that the personal data provided by you – through the Shareholders who will submit the lists pursuant to the means set out by the applicable laws - will be processed for the requirements connected with your candidature as member of the Company’s Board of Directors for financial years 2019-2020-2021.
The personal data to be processed will be your first name, surname, Tax Code, as well as the data contained in your CV and they will be used for the purposes relating to the inclusion in the list that, in accordance with applicable laws and regulations, will be put to the vote at the ordinary Shareholders’ General Meeting.
Under article 6, paragraph 1, letters b) and c) of the Regulation, your consent is not required since the above mentioned personal data are necessary for executing contractual and pre-contractual measures, as well as legal obligations to which Atlantia is bound. Therefore, refusing to provide such data, albeit voluntary, implies that the controller would not be able to execute the contractual relationship which you are party to and meet the above mentioned legal obligations.
Your data will be processed both in paper form and by automated means and, with reference to such means, through electronic instruments (e.g. software, hardware platforms, applications, etc.) of which the controller is owner or user; in any case, in respect of such instruments, security measures adequate for the processing for which they are used will be adopted.
We would also like to inform you that your personal data will be processed for all the period of time needed to achieve the above mentioned purposes; once achieved these purposes, such data will be retained after the termination of the contractual relationship until the applicable prescription deadline, to which further twelve months shall be added, only for purposes connected with meeting legal obligations. In the event of possible litigations or for the exercise of the right of defence before a judge, such record-keeping terms will be suspended until the definitive award of the pending litigation among the parties.
Your data may be disclosed, in the context of the above mentioned purposes and in accordance with the obligations set out by privacy law, with the view to complying with specific obligations arising from the applicable laws or specific implementing provisions, also without prejudice to the power to verify the truthfulness of such data with the competent authorities. These subjects will process your data as independent controllers.
Your data will be also communicated to Computershare S.p.A., service provider which Atlantia has engaged for carrying out activities strictly connected with the management of the Shareholders’ General Meeting and which, to this end, has been appointed as data processor.
In accordance with the provisions under the applicable laws and regulations concerning the voting list mechanism and regulated information of listed companies, your data will be published on the Company’s website, in the section relating to the Shareholders’ General Meeting, as well as disclosed to the market through SDIR 1Info, which the Company has engaged for the disclosure and storage of regulated information.
Pursuant to and for the purposes of articles 37-39 of the Regulation, Atlantia appointed as Data Protection Officer the manager pro tempore of the Group Compliance and Security Department, professionally residing at the operating branch in via A. Bergamini, 50, 00159 Rome, who may be contacted by sending an email to dpo@atlantia.it.
Atlantia – for lawful and grounded reasons and consistently with existing legal and contractual obligations – acknowledges your power to exercise the rights set forth under articles 15-22 of the Regulation (i.e. right of access to personal data, rectification and erasure of such data, restriction of processing, personal data portability, objection).
Furthermore, in the manner and within the limits provided for by the applicable laws, you have the right to lodge a complaint with the Authority for the protection of personal data pursuant to article 77 of the Regulation.
Your rights may be exercised by sending an email to dpo@atlantia.it or by post, writing to the attention of the Data Protection Officer, to the following address: via A. Bergamini, 50, 00159 Roma.
All holders of voting rights, in relation to which the Company has received from an authorized intermediary a communication certifying their voting rights may, pursuant to art. 127-ter of Legislative Decree 58/98 (the CFA), ask questions on agenda items also before the General Meeting up to three days prior to the Meeting held on single call (i.e. 15 April 2019).
Questions must be sent to the Company by fax to +39 06-43634260 or to the certified e-mail address atlantia@pecserviziotitoli.it or by using this form.
Pursuant to art. 126-bis of legislative Decree 58/98 (the Consolidated Financial Act), shareholders, who represent, also on a jointly basis, one fortieth of the issued capital may, by 19 March 2018, apply for the addition of agenda or submit proposals for deliberation regarding matters already on the agenda.
Such requests must be accompanied by a report illustrating the reasons for the above proposals.
The applications - made in writing and accompanied by the certificate attesting the ownership of their shares issued by an authorized intermediary, in accordance with the law and regulations in force - must be sent by fax to +39 06-43634260 or to the certified e-mail address atlantia@pecserviziotitoli.it.
Pursuant to art. 126-bis of legislative Decree 58/98 (the Consolidated Financial Act), shareholders, who represent, also on a jointly basis, one fortieth of the issued capital may, by 18 March 2019, apply for the addition of agenda or submit proposals for deliberation regarding matters already on the agenda.
The Company’s issued capital consists of 825.783.990 ordinary shares with a par value of € 1.00 each. Each share grants the right to one vote (excluding treasury shares, which currently total 7,819,488).
Atlantia S.p.A., with registered office in Via A. Nibby, 20, 00161 Rome, in its capacity as controller, would like to inform you, under article 13 of the Regulation (EU) 2016/679 – General Data Protection Regulation (the “Regulation”) that the collected personal data will be used for the management of the activities connected with or relating to the organisation and holding of the shareholders’ general meeting.
the registration and verbalisation of interventions and votes by the notary public, for which Atlantia will use an audio recording system.
Under article 6, paragraph 1, letters b) and c) of the Regulation, your consent is not required since personal data are necessary for executing contractual and pre-contractual measures, as well as necessary for meeting a legal obligation to which Atlantia, in its capacity as controller, is bound.
The processing of personal data is carried out manually (minutes) and/or by automated means (audio tracks and electronic documents) and, in any case, in compliance with the applicable laws.
The above mentioned data are stored and retained for the indicated purposes, within the limitations set forth under the applicable laws and, in particular, based on the provisions set forth in article 2220 of the Italian Civil Code.
Your data may be disclosed with the view to complying with specific legal or regulatory obligations to audit firms, other professional firms, or sole practitioners for giving advice and assistance in corporate transactions, as well as to governmental bodies and public authorities (courts, Italian Stock Exchange, Consob, foreign authorities – if any and competent, etc.).
In addition to the employees who work in Atlantia S.p.A.’s General Counsel Department, processing of your personal data is carried out also by Computershare S.p.A., provider of support and assistance services for the general meeting and, to this end, appointed as data processor.
Some of your personal data may be disclosed to the financial market, to the extent that such disclosure is strictly necessary and in compliance with the applicable laws and CONSOB regulations.
Except for any specific necessities which will be agreed from time to time, your personal data are not transferred to any foreign country.
Your rights may be exercised sending an email to dpo@atlantia.it or by post, writing to the attention of the Data Protection Officer, to the following address: via A. Bergamini, 50, 00159 Roma.
The controller is Atlantia S.p.A., with registered office in Via A. Nibby, 20, 00161 Rome and operating branch in via A. Bergamini, 50, 00159 Rome.
Pursuant to and for the purposes of articles 37-39 of the Regulation, Atlantia appointed as Data Protection Officer the manager pro tempore of the Group Compliance and Security Department, professionally residing at the operating branch in via A. Bergamini, 50, 00159 Rome.
The processor of personal data under article 28, paragraph 3 of the Regulation is Computershare S.p.A., which is responsible for all the processing connected with its support and assistance services for the shareholders’ general meeting.
Furthermore, Computershare S.p.A., in its capacity as Appointed Representative pursuant to article 135-undecies of the Legislative Decree no. 58/98 (“TUF”), may collect proxies for the shareholders’ meeting. Limited to this purpose and in carrying out the activities concerning the representation at the general meeting and casting of votes by the person granting the proxy in compliance with his/her instructions, Computershare S.p.A. act and is liable as independent controller, providing to you, as far as it is concerned, separate disclosure.
For further information, you may contact the Data Protection Officer by email to dpo@atlantia.it.


text:
Check yourself… 5/5 – you know our President very good! 4/5 – you know our President well! 3/5 – you know some facts about our President! 2/5 – you know very little information about V. Putin! 1/5 – you should read more about our President! 0/5 – read some information about our President and try again!
V. Putin tolled… “Among people who we meet and talk to, there are a lot those who disappointed, bewildered. And our duty is to show this people the way at the end of the subway”.
It is important to know… V. Putin tolled pupils how they can become a President. You can see this information on the http://www.uznay-prezidenta.ru.
Test “Do you know our President V. Putin?” QUESTIONS 1. What are the favorite Putin’s authors? 2. How many sons V. Putin has? 3. Does he like animals? 4. How old is V. Putin? 5. What political party is he head of?
Interesting facts about V. Putin There are a lot of different pets in his family. Most of them were given him by different people. They are: a black labrador Kony; two poodles and a karakachan Buffy; a pony Vadik and also he has a goat Fairytale and it’s goatling. He likes fishing, hiking, swimming, diving, skiing, hunting. Also he is fond of judo. V. Putin takes care of rare species of animals. He has his own blog.
Vladimir Putin is the president of our country. His birthday is on the 7th of October (1952); On the 26th of March (2000) he became a President at first time. He took up this position for a 2 periods (till 2008); In 2012 he is a President again.

matches: V. V. V. V. V. V. V. V.


This month’s Blog comes courtesy of a question posed by an officer of a Maryland municipal police agency: In a situation not involving “hot pursuit”, can a law enforcement officer stop and detain a suspected impaired driver while outside that officer’s jurisdiction?
(a) Scope of section. – This section does not apply to an employee of the Department of State Police to whom the Secretary of State Police assigns the powers contained in §2-412 of the Public Safety Article.
(b) In general. – (1) Subject to the limitations of paragraph (3) of this subsection a police officer may make arrests, conduct investigations, and otherwise enforce the laws of the State throughout the State without limitations as to jurisdiction.
(2) This section does not authorize a police officer who acts under the authority granted by this section to enforce the Maryland Vehicle Law beyond the police officer’s sworn jurisdiction, unless the officer is acting under a mutual aid agreement authorized under §2-105 of this subtitle.
(4) The powers granted by this section are in addition to the powers granted by §§ 5-801, 5-802, 5-807, 5-808, and 5-901 of the Criminal Law Article and to the powers of fresh pursuit granted by Subtitle 3 of this title.
In the case of Boston v. Baltimore County Police Dep’t, 357 Md. 393 (1999), the Maryland Court of Appeals addressed a case almost squarely on point. Boston involved a Hearing Board matter in which the Appellant was sanctioned with the loss of five days of leave as a result of his pursuit of a vehicle for a traffic violation committed outside his jurisdiction.
Officer Boston, a sworn member of the Baltimore County Police Department, was driving his marked police car at 2:00 a.m., cutting through Baltimore City as a shortcut from one part of the county to another while responding to a call. While at a stop light on Wikens Avenue in the City, a car came through a red light, nearly collided with Ofc. Boston, made a sharp left turn, and proceeded east on Wilkens Avenue, initially swaying back and forth. Believing that the driver might be intoxicated, Boston turned on his flashing lights and pursued the vehicle for the purpose of making a traffic stop. Although there were no more erratic or evasive moves by the driver of the car, it did not stop. In his testimony before the hearing board, Officer Boston indicated that the vehicle was not being driven in an unsafe manner. At that point, several City police vehicles joined in the pursuit and the pursued vehicle increased its speed to 50-60 MPH. Ofc. Boston ended his pursuit at that time. A short while later, the vehicle went through a stop sign and collided with a taxicab, killing the passenger. The driver was found to have both cocaine and an over the legal limit level of alcohol in his blood. The crash occurred about 3 ½ miles inside the City. Officer Boston had pursued the vehicle for appx. five minutes.
The Court also addressed the question of whether this situation rose to the level of an “emergency” and determined that it did not. The Court stated that when Officer Boston commenced his pursuit, all he knew was that the driver had run a red light, nearly collided with him, and, after making a sharp left turn, briefly swayed. The Court stated that while the vehicle merited being stopped for traffic infractions (though not by Officer Boston), the actions of the driver did not require a finding, as a matter of law, that driver’s actions constituted an “emergency” as it is defined in the code.
The good news is that, according to the Maryland Court of Special Appeals, the remedy for an alleged violation of CP 2-102 is not the suppression of evidence.
Miller v. State, 151 Md. App. 235 (2003) was a Maryland Court of Appeals case involving two Baltimore County police officers who observed a vehicle being driven by a man, both the vehicle and the man matching the description of a subject suspected of having committed rapes in both Baltimore County and Baltimore City. The detectives had gone to a specific location in Baltimore City, seeking to find the suspect. When he was spotted, he had a female passenger in the vehicle. He was then stopped and arrested. The defense sought to suppress the evidence recovered in the resulting stop and arrest on the theory that these facts did not constitute an “emergency” and that none of the other requirements of CP §2-102 existed, therefore making the stop and search unlawful.
[e]ven if the officers did not have authority under § 2-102 of the Maryland Criminal Procedure Article to arrest appellant, the court had no legal basis upon which to suppress the evidence obtained from that arrest. Maryland does not have an independent exclusionary rule, Howell v. State, 60 Md. App. 463, 466, (1984), nor does § 2-102 create one.
In Maryland a private person has authority to arrest without a warrant only in very limited circumstances: a.) when a felony is being committed in the officer’s presence; b.) when a felony has in fact been committed, whether or not in the officer’s presence, if the arrester has probable cause to believe the person he arrests has committed it; or c.) a misdemeanor is being committed in the presence or view of the arrester which amounts to a breach of the peace. Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 155 (1941); 49 Op. Atty. Gen. 11 (1964). Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643 (1970).
State v. Grijalva, 2015 Ariz. App. Unpub., Lexis 194 – A Border Patrol agent, however, may act as a private person and “make a lawful citizen’s arrest pursuant to [A.R.S.] § 13-3884.” State v. Garcia-Navarro, 224 Ariz. 38, ¶ 12, 226 P.3d 407, 410 (App. 2010). Section 13-3884(1) allows a private person to make an arrest “[w]hen the person to be arrested has in his presence committed a misdemeanor amounting to a breach of the peace.” Under Arizona law, DUI is such an offense. State v. Chavez, 208 Ariz. 606, ¶ 16, 96 P.3d 1093, 1097 (App. 2004). Arizona.
Boston’s (Appellants) final argument is that his conduct was justified as a “citizen’s arrest” — that he had the common law right that any citizen has to effect an arrest when observing the commission of a misdemeanor that amounts to a breach of the peace…  [  the] fact is that Boston was not acting, or purporting to act, in the capacity of a private citizen. He was a police officer on active duty, driving a marked police car with overhead lights flashing and siren intermittently blaring. He remained in official contact with his dispatcher and was attempting, as a police officer, to stop and detain the driver. Quite apart from whether any stop, had it been effected, could have been justified under the law of arrest as a citizen’s arrest, the effort to make the stop constituted the extra-territorial enforcement of the motor vehicle laws by a police officer, which Baltimore County police regulations, in conformance with State law, forbid.
So while not directly addressing the issue of whether a DUI constitutes a misdemeanor amounting to a breach of the public peace, the Court seemed to indicate that anything short of the officer being in plain clothes and driving his own personal vehicle would not give rise to a successful citizen’s arrest argument.
Note of Caution: It would also appear that the officer making the initial stop outside his jurisdiction – if not in compliance with CP §2-102 – may be subject to civil liability as a result of any injuries sustained by the driver or other occupants of the stopped vehicle as a result of acting outside the limits of his or her jurisdiction. Subsection (d) of CP §2-102 states that a police officer who acts under the authority of §2-102 has all the immunities and liabilities as a State Police officer. By implication, that would seem to indicate that if not in compliance, then immunity may not exist.
It is strongly recommended that officers in municipal departments consult with their departments’ legal counsel (or that of the Maryland Chiefs of Police Association) regarding this subject. This type scenario is clearly a double-edged sword: On one hand, officers could potentially face civil (and possibly criminal) liability for conducting an extra-territorial traffic stop based upon a violation of the Maryland Vehicle code. On the other hand, what are the potential ramifications (real or practical) if a clearly dangerous and erratic driver is observed by an out of jurisdiction officer and no attempt is made to detain him (short of reporting the observations), especially if the impaired driver goes on to kill or seriously injure another?
Given the advancement in technology and new and upgraded police dispatch capabilities it would seem that these concerns are no longer present. Perhaps it is time to look into amending the statute to allow for motor vehicle stops outside an officer’s jurisdiction in those situations that pose a danger to the public, namely, driving while impaired. It would be very hard to justify to the family members of someone killed by a drunk driver that a police officer observed the drunk driver prior to the collision that took the life of a loved one, but were prohibited by statute from acting on it short of calling it in to another department.
AS ALWAYS, PLEASE CONSULT YOUR DEPARTMENTS LEGAL COUNSEL OR WITH YOUR LOCAL STATE’S ATTORNEYS OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT.


Plaintiff George A. Shamblin appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Shamblin is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas. On October 15, 1999, Shamblin filed a 42 U.S.C. § 1983 complaint in federal district court, alleging that defendants Dr. Pham, Mr. Guyer, and Dr. Brice were deliberately indifferent to his pain and suffering and intentionally denied him medical care, thereby violating his Eighth Amendment rights. Shamblin detailed the treatment he received from Dr. Pham for gall bladder complaints and alleged Dr. Pham should have ordered Shamblin's gall bladder removed years before he did. Shamblin also recited treatment received from Mr. Guyer for a sinus infection and from Dr. Brice for a dental complaint and contended both provided him with inadequate medical care and treatment. The district court sua sponte dismissed Shamblin's complaint for failure to state a claim for relief before defendants filed an answer. The district court determined Shamblin's complaint showed he had "received considerable medical care during his incarceration, including medication, review by nurses, physicians, and a dentist, and laboratory testing." Order of Dec. 20, 1999, at 2. The district court concluded that Shamblin's "claims most properly must be construed as no more than dissatisfaction with the type of medical care he has received rather than as a claim of deliberate indifference." Id. at 3. The district court denied Shamblin's motion to amend and for reconsideration.
Shamblin raises three issues on appeal: (1) whether the district court erred in dismissing his complaint for failure to state a claim; (2) whether the district court erred in denying his motion to amend his complaint; and (3) whether the district court erred in not ordering defendants to file a Martinez report in response to his complaint.
The district court dismissed Shamblin's complaint for failure to state a claim for relief. We apply a de novo standard of review to the district court's dismissal for failure to state a claim. Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir. 2000) (stating Fed. R. Civ. P. 12(b)(6) standard of review); Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir. 1999) (stating 42 U.S.C. § 1915(e)(2)(B)(ii) standard of review).
Shamblin alleged defendants violated his Eighth Amendment rights by failing to provide him with medical care. "The Eighth Amendment, applied to the states through the Due Process Clause of the Fourteenth Amendment, prohibits infliction of cruel and unusual punishments on those convicted of crimes." Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). To state a cognizable Eighth Amendment claim for failure to provide medical care, "'a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (emphasis omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The deliberate indifference requirement has two components: (1) an objective component requiring that the pain or deprivation be sufficiently serious, and (2) a subjective component requiring that the offending officials act with a sufficiently culpable state of mind. Perkins, 165 F.3d at 809 (citing Wilson v. Seiter, 501 U.S. 294, 298-99 (1991)).
An allegation of "inadvertent failure to provide adequate medical care" or of a negligent diagnosis does not establish the requisite culpable state of mind. Wilson, 501 U.S. at 297. Further, a plaintiff's difference of opinion with the medical judgment of the prison doctor is insufficient to support a claim of cruel and unusual punishment. Olson, 9 F.3d at 1477. Shamblin's complaint alleged he was not sufficiently treated for his ailments. Shamblin takes issue with defendants' decisions about how to treat his conditions, but he does not contend that he received no medical treatment. Shamblin's complaint shows he received consistent medical attention. See Perkins, 165 F.3d at 811 (stating that "a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation"). At most, Shamblin alleged defendants were negligent in his treatment. "A negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation." Id. The district court did not err in dismissing Shamblin's complaint for failure to state a claim.
We review the district court's denial of a motion to amend a complaint for abuse of discretion. Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024, 1029 (10th Cir. 1996). The district court denied Shamblin's motion to amend, concluding his claims "sound, at most, in malpractice." Order of Feb. 2, 2000, at 2. Shamblin's proposed amendment continued the allegations of his complaint and contained no allegations amounting to a constitutional violation. The district court did not abuse its discretion in denying Shamblin's motion to amend.
Shamblin contends the district court should have sua sponte ordered defendants to respond to his complaint with a Martinez report. "[T]he district court was not required to order a Martinez report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978), before it dismissed the case when [defendant's] complaint established that significant medical treatment was provided him by the prison." Flores v. McCullar, 107 F.3d 20, 1997 WL 43521 at *1 (10th Cir. 1997) (unpublished disposition). We conclude the district court did not abuse its discretion in not ordering a Martinez report when Shamblin failed to allege he was denied constitutionally required medical care.
Defendants contend this appeal is not ripe because Shamblin has not paid the required appellate filing fee. The district court granted Shamblin leave to proceed on appeal in forma pauperis without payment of an initial partial appellate filing fee and ordered that Shamblin's payments toward the appellate filing fee would begin after he had satisfied prior fee obligations. This appeal is properly before us and we remind Shamblin of his continuing obligation to make payments until the entire filing fee is paid.


Kristina M. Gammill (1) challenges the judgment terminating her parental rights to R. A. She challenges the failure to recuse the associate judge, to grant a continuance, and to find a jury demand timely. Gammill also challenges the trial court's conclusions that Gammill's acts and omissions endangered her son's physical or emotional well-being and that she failed to comply with the provisions of the plan to reunite her with her child. She also contends that the trial court erred by finding that termination of her parental rights was in R. A.'s best interest. She contends that no evidence, or legally and factually insufficient evidence, supports the trial court's termination of her parental rights. We affirm.
R. A. was born October 2, 2006. He is Gammill's second child. His father is Lafay Augustine, who was alleged at trial to have fathered nine children by five women in his 26 years. Within weeks of R. A.'s birth, Gammill left her parents' home (2) and moved to a series of lodgings, one of which the Department deemed acceptable and one of which the Department deemed unsafe. Gammill stopped taking the drugs prescribed to treat her bipolar disorder and, during the next few months, developed postpartum depression, attempted suicide, and was admitted to a psychiatric hospital. On December 20, 2006, the Department filed this proceeding and took custody of R. A.
Gammill partially complied with the requirements of her plan. She attended approximately 25 of her 33 scheduled visits with R. A., and was sometimes late. She was asked to withdraw from parenting classes in May 2007 because of her absences, although she later completed the classes. She failed to maintain employment or stable housing.
She also renewed her relationship with Augustine, by whom she again became pregnant in May 2007. She initially denied that he was the father of the second child. In September, Gammill had a confrontation with Augustine after he damaged the engine in her car. Gammill testified that, after Augustine physically abused her, she ended the relationship. Also in September, the Department changed its direction in this matter to termination rather than reunification.
The case was initially heard by Associate Judge Karin Bonicoro on October 26, 2007. Gammill moved to recuse Judge Bonicoro, asserting that she was biased against Gammill. Judge Bonicoro declined to withdraw, and the motion was denied. Gammill's jury demand was denied as untimely, and Judge Bonicoro refused to continue the hearing so that Gammill could obtain a jury and call three witnesses--Jim Cox, a forensic psychologist who evaluated Gammill, Daniel Skoglund, her treating psychologist, and Tania Glenn, a social worker who taught Gammill's parenting class. After the hearing, Judge Bonicoro concluded that Gammill's parental rights should be terminated. Gammill appealed for a de novo hearing before the district judge.
On January 29, 2008, the district court took judicial notice of the testimony from the hearing before Judge Bonicoro. The court also heard testimony from Skoglund and additional testimony from Gammill. The court ordered Gammill's rights terminated. After Gammill filed her statement of points on appeal, the district court found her indigent and deemed her appeal frivolous.
Appellant's motion to recuse lacked merit. "To require recusal, a judge's bias must be extrajudicial and not based upon in-court rulings." Grider v. Boston Co., 773 S.W.2d 338, 346 (Tex. App.--Dallas 1989, writ denied) (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)). Opinions formed by the judge on the basis of facts introduced or events occurring during proceedings do not constitute a basis for a recusal motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex. App.--Houston [14th Dist.] 1997, no pet.) (citing Liteky v. United States, 510 U.S. 540 (1994)). The excerpts from the record show an associate judge who is trying to clarify the facts in a permanency hearing and to ensure that Gammill appreciates the gravity of her acts and omissions. Nothing in the record indicates bias on the part of Judge Bonicoro. These statements occurred a month before the trial, and Gammill does not point to any evidentiary rulings made by Judge Bonicoro that show bias. The district court took notice of the testimony taken at that hearing and ordered termination. We overrule point of error two.
Gammill contends that the trial court erred in not granting her motion for continuance to obtain a jury setting and by finding that her jury demand was untimely. We review the denial of a motion for continuance for an abuse of discretion. General Motors v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding). Jury trials are available in family law cases upon timely request. See Tex. Fam. Code Ann. § 105.002 (West 2008). By rule, the request must be made and the jury fee paid at least 30 days before the trial date. Tex. R. Civ. P. 216. "When a party has perfected its right to a jury trial in accordance with Rule 216 but the trial court proceeds to trial without a jury, the party must, to preserve error, either object on the record to the trial court's action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial." In re K.M.H.,181 S.W.3d 1, 8 (Tex. App.--Houston [14th Dist.] 2005, no pet.).
Neither the associate judge nor the district judge abused their discretion by denying the jury demand or the motion for continuance. Gammill's jury demand was untimely under the general rule and the specific order in this case. The Pre-Trial Scheduling Order, signed February 16, 2007, provided in bold, italicized, and underlined language: "All jury demands are to be filed on or before the date of the Initial Permanency Hearing." The initial permanency hearing was set for June 8, 2007, and held on June 22, 2007. A subsequent permanency hearing was held on September 28, 2007. Gammill filed her jury demand on October 9, 2007. (7) Gammill contends that the jury demand was necessitated by the Department's change of requested relief from reunification to termination, but the scheduling order does not have alternate timetables depending on the course of the proceeding. A continuance might have pushed the initial hearing date beyond 30 days after the October 9 jury demand, but it would not have made the October 9 filing compliant with the June 22 deadline. Gammill did not file a new jury demand before the de novo hearing, nor did she object to the absence of a jury at that hearing.
Gammill also argues that the associate judge abused her discretion by denying the continuance on grounds that it prevented her from calling certain witnesses. Without exploring whether Judge Bonicoro erred, we conclude that any asserted error was rendered moot by the de novo hearing before the district court. We are reviewing the judgment rendered by the district court. Any error in denying the continuance was harmless, because Gammill had the opportunity to call the disputed witnesses to testify before the district court. She called Dr. Skoglund (mooting her complaint) and did not call the other witnesses (waiving her complaint). There is no showing that Judge Bonicoro's denial of the continuance prevented Gammill from calling any witness before the district court. We overrule points of error three and four.
Gammill's remaining points of error challenge the sufficiency of the evidence and the findings made in support of the judgment. She contends that the court erred by finding that she (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child, (2) engaged in conduct that endangers the physical or emotional well-being of the child, and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for Gammill to obtain the return of the child who had been in the permanent or temporary managing conservatorship of the Department. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O) (West 2008). She also contends that the court erred by finding that termination of the parent-child relationship was in the child's best interest. See id. Gammill asserts that termination of the parent-child relationship was supported by no evidence, legally insufficient evidence, or factually insufficient evidence.
A court may terminate the parent-child relationship only if it finds clear and convincing evidence to support one or more of the statutory grounds and that termination would serve the child's best interest. Id. Appellate courts review the factual and legal sufficiency of the trial court's findings of fact and conclusions of law according to the same standards as jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); GATX Terminals Corp. v. Rylander, 78 S.W.3d 630, 633 (Tex. App.--Austin 2002, no pet.). Witness credibility issues "that depend on appearance and demeanor cannot be weighed by the appellate court; the witnesses are not present. And even when credibility issues are reflected in the written transcript, the appellate court must defer to the jury's determinations, at least so long as those determinations are not themselves unreasonable." Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004).
In a factual sufficiency review of a finding subject to a clear-and-convincing standard of proof, "a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The inquiry is whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the disputed finding. Id. "A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
J.F.C., 96 S.W.3d at 266.
•Gammill had history with substance abuse, bipolar disorder, and the Department that echoed through this case. She began using alcohol and marijuana when she was 12 years old, and moved onto methamphetamines and cocaine at around 16. She reported physical and verbal abuse by her father starting when she was age 12. The Department found reason to believe that Gammill's father had sexually abused his niece. Gammill was in Department care from age 13 until age 18.
•Gammill had a child who was the subject of a removal and service plan in Bastrop County when she had R. A. The child was eventually placed with Gammill's parents.
•Gammill stopped taking the medications treating her bipolar disorder shortly before R. A. was born, and did not resume taking them until hospitalized following her suicide attempt. In addition, Gammill suffered from postpartum depression after R. A.'s birth.
•Within days of R. A.'s birth in October 2006, Gammill left her parents' house, and she moved four times in just over two months. Although she had, with a Department representative, created a safety plan that called for her to stay with an aunt, she soon left that home for one described by Department investigator Constance Rentz as trash-filled, containing many safety and health hazards inside and outside, and occupied by persons believed to be using marijuana and intravenous drugs.
•When R. A. was younger than two months, Gammill reportedly took him with her to bars and left him in the care of individuals whom she did not know very well. She resumed using drugs and alcohol in December 2006 and January 2007.
•In December 2006, Gammill took an overdose of Excedrin and was treated and released the same day. She testified that she attempted suicide twice in 2007. She later checked into a psychiatric hospital.
•Although Augustine was in jail in November 2006, occasionally denied fatherhood of R. A., and failed to participate in services designed to restore custody to Gammill and himself, Gammill renewed or continued her relationship with him, including conceiving a second child with him. She made that contact despite being warned against it by the Department, which had twice found reason to believe that Augustine was violent toward the mother of some of his other children. That contact continued through September 2007, when he beat Gammill during an argument while she was four months pregnant with his child.
•Gammill proposed to stay in a house on her parents' land, returning to the site where she claimed her father was verbally and physically abusive to her and from which she had fled as a teenager and again as R. A.'s mother.
•She acknowledged that postpartum depression could again combine with her bipolar disorder based on her experience with R. A.
•Gammill's visits with R. A. went well. She interacted with him, changed his diapers, and fed him.
•Her psychiatrist testified that Gammill had resumed her medications for bipolar disorder, had stopped using "stimulants" in January 2007, and was sincere in wanting to improve. He testified that nothing he had observed in 2007 would prevent her from demonstrating an ability to parent.
•Gammill testified at the January 2008 de novo hearing that she had completed parenting classes, completed and was discharged from drug and alcohol testing, and had acquired stable transportation.
•Gammill's parents were named managing conservators of Gammill's eldest child by the Bastrop County court.
•Gammill's parents had remodeled the house she proposed to live in.
•Gammill testified that she ended her relationship with Augustine after he beat her in September 2007.
There were some direct evidentiary conflicts, such as the Department investigator's testimony that Gammill reported ongoing physical abuse by her father since she was twelve versus Gammill's testimony that her father pushed her once just to get away from her. Such conflicts required the fact-finder to make a credibility choice. Although there is evidence that Gammill took steps to improve her parenting abilities and the environment into which she proposed to bring R. A., the fact-finders were entitled to focus on the fact that, when she had custody of R. A. during his first two months of life, she moved him from a relative's home approved by the Department to a home that was unsafe because of its maintenance and because of the drug use of other inhabitants, took him to bars, and left him in the care of unrelated persons whom she did not know very well. She continued to have contact with Augustine--despite her being warned by the Department to stay away, despite her knowing his previous violence toward another mother of his children, (8) and despite his indifference toward R. A.--even conceiving another child with Augustine. We conclude that the record contains legally and factually sufficient evidence to support findings by clear and convincing evidence that Gammill knowingly placed or knowingly allowed R. A. to remain in conditions or surroundings that endangered his physical or emotional well-being, and engaged in conduct that endangered his physical or emotional well-being.
Sufficient evidence also supports the finding that Gammill failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child who had been in the permanent or temporary managing conservatorship of the Department. It is undisputed that she missed at least 8 of the 33 ninety-minute weekly visits with R. A., and was as much as 45 minutes late for others. She was dismissed from a parenting class because of absences, although she later completed another class after the hearing before the associate judge but before the de novo hearing. She stopped therapy with the Department-provided therapist because she did not trust her, but was not able to regularly attend therapy with her therapist of choice because she could not pay for the sessions. She did not provide a list of medications to her caseworker or the associate judge and, although she testified at the de novo hearing that she had brought proof that she had filled the required prescriptions, she testified that her evidence was deemed inadmissible. She stated that she had been attending Alcoholics Anonymous weekly and had been progressing, although she did not bring proof of attendance because "that's something you do for probation." She failed to maintain stable housing and transportation throughout the year, including when Augustine blew out the engine of her car. She testified at the de novo hearing that she had a car and the remodeled house on her parents' land. Although there was evidence that Gammill's compliance improved during the course of the year this case was pending, the record contains legally and factually sufficient evidence to satisfy the clear-and-convincing burden of proof that Gammill did not fully comply with the court-ordered service plan.
(1)	The desires of the child. One-year-old R. A. was described as having bonded with his foster mother, who intended to adopt him. However, Gammill's interactions with R. A. during her visits were described as having gone "very well."
(2)	The emotional and physical needs of the child now and in the future. Gammill moved lodgings several times, including to unsafe surroundings, in his first two months. She missed at least eight of her scheduled visits with him, and was late to others. On the other hand, even while in the unsafe and unkempt home, R. A. was described as clean.
(3)	The emotional and physical danger to the child now and in the future. Gammill moved R. A. to a house where illegal drug use was suspected and left him in the care of unfamiliar persons while she went to bars. She renewed or maintained her relationship with Augustine despite being warned to stay away from him by her father and Department employees, and knowing he had physically abused another mother of his children. She did not use the de-escalation techniques she had learned in parenting class. She intended to stay near her parents, despite the facts that she had reported that her father had been physically and emotionally abusive to her for years and that she had fled or been kicked out of their house shortly after R. A. was born.
On the other hand, Gammill denied that her father was violent toward her and stated that she ended her relationship with Augustine after he beat her. She said she had not been aware of battered spouse syndrome, and wanted to get help to deal with that. She also had completed parenting training.
(4)	The parental abilities of the individuals seeking custody. Gammill admitted at the hearing before the associate judge that she was not ready to be R. A.'s full-time parent, in part because she needed more therapy. At the de novo hearing, she admitted that she stopped therapy because she could not pay, and yet she refused therapy with Department therapists because she did not trust them.
Gammill completed her parenting classes and was willing to take more training. Although her psychiatrist said he could not give a good, informed decision about her ability to make daily parenting decision, he testified that she was sincere about wanting to improve, and had been more stable and making better decisions since taking her medications regularly and becoming pregnant again.
(5)	The programs available to assist these individuals to promote the best interest of the child. Programs were available to help Gammill, and she eventually participated in those prescribed, but the fact that she was dropped from a parenting class for absences and her sporadic attendance of therapy cast some doubt on whether she would meaningfully avail herself of such programs. Gammill struggled to complete some of the programs even though they were required by the order in this case as well as a separate case involving her first child. These struggles cast some doubt on her resolve to improve as described by her psychiatrist.
(6)	The plans for the child by these individuals or by the agency seeking custody. R. A.'s foster parents intend to adopt him. Gammill intends to move in next to her parents.
(7)	The stability of the home or proposed placement. Department conservatorship caseworker Aracelia Ruppert described R. A. as very bonded and happy with his foster parents.
Gammill intended to move to the home she left when R. A. was less than a month old. Department workers said she told them her father had been verbally and physically abusive for years. The Department had previously found reason to believe he sexually abused his niece. When Gammill left her parents' house, she moved three times in less than two months. This evidence likely outweighed evidence of Gammill's reported improvement and intent to continue improving. Gammill intended to move in next to her parents, who are the managing conservators of her first child, and was expected to deliver her third child--her second by Augustine--within weeks of the de novo hearing.
(8)	The acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one. Gammill's activities during the first two months of R. A.'s life come to bear here. The repeated moves, including most critically the move away from an approved home to an unsafe house inhabited by suspected drug users, weighs against Gammill on this issue, as does the report that she left him with unrelated, unfamiliar people while she went out to bars. Descriptions of her interacting appropriately during her ninety-minute scheduled visits do not do much to counter that negative impression. After hearing and reviewing testimony, the trial court was positioned to assess whether her efforts to improve herself and her surroundings would persist, or whether she would relapse into her previous behaviors.
(9)	Any excuse for the acts or omissions of the parent. Gammill's history with the Department explains some of her resistance to the Department's and the court's requirements, but that very experience should also have taught her the seriousness of those requirements. That experience does not excuse her acts and omissions to comply promptly with the requirements. Her bipolar disorder and postpartum depression explain some of her actions. Her psychiatrist testified that she was much more stable and improved while on her medications. He testified, however, that her continuation of the relationship with Augustine was not attributable to her psychiatric condition. Gammill testified that she consciously chose to continue the relationship with Augustine so that she could develop a reason to hate him. Her financial circumstances explain why she could not pay for therapy, but her refusal to accept free services prevents her finances from excusing her from participating in therapy.
We conclude that the evidence is factually and legally sufficient to permit the fact-finder to make credibility choices and form a firm conviction that termination of Gammill's parental rights is in R. A.'s best interest.
1. Appellant's last name is spelled Gammel in some filings and Gammill in others. We use the latter spelling, which was used in the order of termination and the notice of appeal.
2. There was conflicting evidence on whether she left because she did not feel welcome or was barred from the premises because of parental objections to her taking R. A. to visit Augustine.
3. Other parts of the record were requested and filed separately, including the original clerk's record (February 26, 2008) and the reporter's records of the hearings before the associate judge (May 23, 2008) and the district court (April 16, 2008).
4. Further, it is not clear that our review would have any effect. The records have been filed without indication that Gammill paid for them--indeed, two of the reporter's records recite that they were to be paid by Hays County. She was found indigent and was represented on appeal. She has not paid costs in this Court. Nevertheless, we are considering the merits of her appeal. Because Gammill has not briefed why the frivolousness finding must nevertheless be reversed, we would be in the position of providing an advisory opinion that the appeal is not frivolous even if the error had been timely presented for our review.
THE COURT: You know, it's possible to do all these services and still fail, do you understand that, Ms. Gammill? Do you understand that that could happen?
THE COURT: Do you know how--can you tell me how that might be the case, why it could be that you could do a bunch of services and still end up not getting your child back?
MS. GAMMILL: Because his father is not a safe person for me to be around and by me allowing him to be around, I would be putting my child in danger.
THE COURT: You are right on target.
MS. GAMMILLL: I do understand that. I understand where they're coming from.
THE COURT: That was an interesting way to put it. That would lead someone like me to infer that you could understand what they're saying and maybe still not perceive that there really is a threat. Only that you can understand that someone is telling you that you ought to be able to perceive it as a threat.
MS. GAMMILL: Please, I'm trying to make it right. Please, I'm trying.
THE COURT: You've done that--you've done that the week of this hearing. And it's not unusual as people get--you know, they don't--they don't do these kinds of things for three months that precede, but they get right up to the hearing and they kick into action because they need to be able to come in here and show me something.
But you're also a solid eight months into this case. And a week ago you tell everybody you let this guy beat the crap out of you while you're pregnant. The same guy that got us here the first time around, I think.
7. Even solely under Rule 216, this was untimely for the hearing before the associate judge.
8. At trial, Gammill testified that she understood that Augustine had been assaulted by the other mother, rather than him assaulting her.


39-4-18. Manufacture of adulterated or misbranded food as misdemeanor. It is a Class 2 misdemeanor for any person to manufacture any article of food which is adulterated or misbranded within the meaning of this chapter.
Source: PenC 1877, § 453; CL 1887, § 6654; SL 1899, ch 89, § 28; RPolC 1903, § 2931; SL 1909, ch 163, § 1; SL 1917, ch 242, § 1; RC 1919, § 7805; SDC 1939, §§ 22.0406, 22.9904; SL 1977, ch 190, § 360.


text:
SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS, by Louis Fisher. Lawrence, Kansas: University Press of Kansas, 2017. 352pp. Cloth $39.95. ISBN: 978-0-7006-2467-6.
Reviewed by Michael A. Zilis, Department of Political Science, University of Kentucky. Email: michael.zilis@uky.edu.
This past spring, during oral argument in TRUMP V. HAWAII (2018), Justice Elena Kagan raised the hypothetical of an “out-of-the-box kind of President,” an avowed anti-Semite who bans immigration from Israel. What are the limits, Kagan asked, to the president’s immigration authority? Notably, the question appears to fly in the face of a modern Supreme Court that “regularly idealizes the President as specially equipped to act responsibly and competently in external affairs” (p. 309). This idea – that the Supreme Court has improperly ceded constitutional authority to the executive in foreign affairs – provides the central theme of Louis Fisher’s SUPREME COURT EXPANSION OF PRESIDENTIAL POWER: UNCONSTITUTIONAL LEANINGS.
The book reviews the historical and legal record concerning executive power and Fisher covers a wide swath of territory. He devotes the initial chapters to analyzing separation of powers principles as well as precedents from the 18th and 19th centuries, arguing forcefully that the Framers intended for the executive and legislature to share power in the conduct of foreign affairs. Even Lincoln, who so aggressively used executive authority during the Civil War, recognized basic limitations. During THE PRIZE CASES (1863), his administration argued that the right to initiate a conflict belonged exclusively to Congress. But Fisher contends that, decades later, a fundamental shift occurred. Reviewing in detail the conduct of every administration since World War II, he finds presidents becoming more aggressive in their assertion of plenary foreign affairs power. He also expresses alarm about a Court that has become willing to accede. In each chapter, Fisher nicely blends a review of the historical record by examining the major actions of the executive branch with analysis of the most important case law.
The heart of Fisher’s critique points to the Supreme Court’s careless use of dicta in its opinions, which has compounded presidential authority over time. The primary object of this sloppiness is UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION (1936). The opinion made passing reference to the president as the “sole organ” of the country in international affairs and although it was not central to CURTISS-WRIGHT’s resolution, the sole-organ doctrine featured prominently in subsequent cases. The executive branch, Fisher argues, bears some responsibility for the Court’s overreliance on the doctrine, since presidents insistently cited the CURTISS-WRIGHT dicta time and again. But the justices also erred. By the end of the 20th century, the Supreme Court accepted the misguided proposition that CURTISS-WRIGHT established plenary executive power in foreign affairs, opening the door to a host of presidential misjudgments from Vietnam to the War on Terror.
One of the book’s most interesting contributions concerns how legal errors and presidential misrepresentations shaped U.S. foreign affairs. The sole-organ doctrine provides the prime example. Not only did the Court come to accept dicta as a central legal precept, but the CURTISS-WRIGHT opinion itself misread a John Marshall speech that referenced the idea. Fisher argues that when the speech is read in its entirety, it becomes clear that Marshall did not believe the executive wields plenary foreign affairs power; rather, Marshall was defending the president’s ability to carry out a treaty provision. In other words, the president acts as the sole organ only for the purposes of [*43] implementation. The CURTISS-WRIGHT Court obscured this nuance.
The original misreading, compounded by a judicial overreliance on it, led to grave consequences, such as Japanese interment during World War II and the flawed state secrets privilege in UNITED STATES V. REYNOLDS (1953). Most disturbingly, perhaps, Fisher shines the spotlight on the Nazi saboteur case EX PARTE QUIRIN (1942). The ruling, which the Court expedited, allowed for the execution of six accused Nazi spies whom the government put to death within a week. But then the Court was forced to convene to write an opinion that would justify the already-completed executions. Needless to say, this created substantial legal difficulties – there was essentially no going back on the per curium after the accused had been put to death. Ultimately, the QUIRIN Court failed to carefully interrogate whether the actions of Franklin Roosevelt’s administration complied with Congress’s war authorization, and multiple justices later expressed regret over how the Court handled the case.
Fisher’s blending of the historical and constitutional record, impactful primary and secondary themes, lively writing, and ability to weave an interesting story make the book quite rich. As such, it should interest both political historians and constitutional law scholars alike. Fisher does not mince words and displays no hesitancy in making a convincing normative argument. This, of course, makes the work different from some law and politics research in political science, and scholars in this mold may appreciate more systematic discussion of case selection and outcomes as well as a fuller account of the justices as strategic actors. But Fisher’s aim is clear: to provide a comprehensive survey of the historical record, pointing out major developments along the way. His evidence is comprehensive and convincing, although some portions detour from the main argument. As an example, consider a chapter on the use of the legislative veto, which contends that both Congress and the executive branch ignored Supreme Court directives on the practice. While relevant to the separation of powers dynamic, these developments stand apart from the foreign affairs matters that animate most of the book. SUPREME COURT EXPANSION OF PRESIDENTIAL POWER is at its strongest when tightly focused on the cases that illustrate its central theme.
The manuscript raises a number of interesting questions that merit further exploration. First, it is worth probing why the Supreme Court has neglected to police executive branch actions and why Congress has failed to more aggressively push back against the president. Part of the answer comes from the fact that all parties may find it advantageous to depart from a stronger power-sharing arrangement. The case of the legislative veto illustrates the point, since it provides the executive “the flexibility it desires and that Congress otherwise would not have provided, while allowing Congress to retain control” (p. 196). Deference to the executive in foreign affairs also serves such a purpose, allowing the administration to determine the conduct of military affairs, in which the Court does not feel equipped intervene. Viewed in this light, deference is less a constitutional abdication than a recognition of political reality by a savvy judiciary.
Such arises a second question: how do the elements of judicial strategy play into the Supreme Court’s foreign affairs jurisprudence? In most of the cases Fisher reviews, the justices face pressures from the executive branch, Congress, public, and legal precedent. Often, the book shows, the Court misreads the latter out of deference to the former. Yet it is worth considering how often these rulings are a product not of a misguided Court but rather one seeking to balance a number of factors about which it cares. Recognizing this fact would not alter Fisher’s ultimate conclusion – that the Court has departed from the Framers’ vision of foreign affairs – but it would provide insight as to why it happened and the conditions under which we may expect it to continue. After all, deference is not inevitable. The book’s latter chapters show that the Court sometimes denies broad presidential claims of authority, as in HAMDI V. RUMSFELD (2004) and RASUL V. BUSH (2004). But recall that these rulings occurred just as the public was becoming much [*44] more skeptical about the Bush administration’s handling of foreign affairs (Jacobsen 2007), which may have provided a strategic Court reason to police the executive branch more carefully. In other words, deference may come about not from judicial abdication, but from justices who are carefully attuned to a host of competing considerations. This leads to a final important question regarding how the Court will read executive branch power going forward: will the justices continue to countenance plenary presidential power in foreign affairs in the near future?
In spite of a long pattern of deference, there are subtle signs of change. Justice Kagan’s questioning, during oral argument, in TRUMP V. HAWAII (2018) echoes some of the skepticism regarding presidential conduct that the Supreme Court expressed in HAMDI and RASUL. Even more dramatically, the Court finally, in 2015, corrected its eight decade-long misreading of CURTISS-WRIGHT by limiting the scope of the sole-organ doctrine in ZIVOTOFSKY V. KERRY (2015). Yet Fisher is not optimistic that the ruling represents a new direction, noting even it has “many deficiencies” (p. 298), including a continued failure to analyze what John Marshall originally intended with his sole-organ speech and a persistent reliance on other erroneous dicta. Fisher’s answer to the preceding question, then, is not a hopeful one. That the current Court continues to err on the side of the president in foreign affairs should give pause to legal scholars and citizens alike.
Jacobsen, Gary C. 2007. “The Public, the President, and the War in Iraq.” In THE POLARIZED PRESIDENCY OF GEORGE W. BUSH, edited by George C. Edwards III and Desmond S. King, 245-284. Oxford: Oxford University Press.
THE PRIZE CASES, 67 U.S. 635 (1863).
“TRUMP V. HAWAII.” Oyez. Accessed May 22, 2018. https://www.oyez.org/cases/2017/17-965.
TRUMP V. HAWAII, 585 U.S. ____ (2018).
UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION, 299 U.S. 304 (1936).
ZIVOTOFSKY V. KERRY, 576 U.S. ___ (2015).
© Copyright 2018 by author, Michael A. Zilis.

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