Your client asked for reasonable accommodations/modifications and was retaliated against for doing so. Let’s assume that the retaliation is fairly obvious. The question becomes when you file a retaliation claim are you going to be able to get compensatory and punitive damages? Might it depend upon the title or law that you are suing under? The answer to that question is yes! And is the subject of this blog entry. As is my usual practice, I have broken down the blog entry into different parts: the argument that compensatory and punitive damages are not allowed for retaliation claims under title I of the ADA; the argument that compensatory and punitive damages are allowed for retaliation claims under title I of the ADA; the question of whether compensatory and punitive damages are allowed for retaliation claims under title II of the ADA; the question of whether compensatory and punitive damages are allowed for claims alleging violation of § 501 of the Rehabilitation Act; and takeaways. Of course, the reader is free to focus on any or all of the categories.
The leading case saying that compensatory and punitive damages are not allowed for a retaliation claim involving title I of the ADA is Kramer v. Banc of America Securities, LLC 355 F.3d 961 (7th Cir. 2004). The Seventh Circuit reasoned that if you trace the ADA out in terms of the remedies that are described for retaliation with respect to title I of the ADA, the inescapable conclusion is that punitive and compensatory damages, i.e. legal remedies, are not mentioned. Accordingly, compensatory and punitive damages are not possible. As pointed out by the Seventh Circuit in this case, that also means a retaliation claim based on title I of the ADA does not contain within it a right to a jury trial unless the defendant consents and that consent is not withdrawn.
Kramer is gaining wide acceptance, but not everywhere. The contrary view comes from the Western District of Tennessee in the case of Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009). In this case, the Western District of Tennessee admitted that if you trace out the ADA in terms of the remedies that are described for retaliation with respect to title I of the ADA, you do reach the conclusion that compensatory damages are unavailable for ADA claimants alleging retaliation under title I of the ADA. However, the Western District of Tennessee felt that such a result should not be controlling if it produces a result that is absurd or contrary to other provisions of the ADA. The Western District of Tennessee then proceeded to rely on a US Supreme Court decision, Gomez-Perez v. Potter, 553 U.S. 474 (2008), where the Supreme Court of the United States held that where a statute provides remedies for intentional discrimination, it also necessarily includes retaliation in that calculus even where retaliation is not explicitly mentioned. Accordingly, the Western District of Tennessee reasoned since retaliation and intentional discrimination are both intentional discrimination, it would be an absurd result to hold that Congress intended compensatory damages to be available only under title I of the ADA but not under its retaliation provision.
With Respect to Compensatory and Punitive Damages under Title I of the ADA For Retaliation Claims, Who Is Right?
Baker is based upon Gomez-Perez and in particular the proposition that a claim of retaliation is not conceptually different from a claim of discrimination. However, that proposition may no longer be good law because a fundamental premise of the reasoning in University of Texas Southwestern Medical Center v. Nasser, as we have already discussed in this blog entry, is that retaliation and discrimination are conceptually very different from each other. Even so, the counter to that argument with respect to compensatory and punitive damages, would be that since both retaliation and intentional discrimination are intentional discrimination, the remedies shouldn’t be different. How will this shape up? Ultimately, the United States Supreme Court is going have to answer this question. The swing vote? You guessed it: Justice Alito! (Bet you didn’t see that coming:-) . I say that for three reasons. First, Justice Alito had a very straightforward record of deciding disability discrimination cases while he was on the Court of Appeals. Second, he is the author of the Gomez-Potter decision. Finally, it may come as a surprise, but Justice Kennedy when it comes to disability discrimination cases, has not been the swing vote, rather it was Justice Sandra Day O’Connor.
With Respect to Compensatory and Punitive Damages under Title II of the ADA Are Compensatory and Punitive Damages Allowed for Retaliation Claims?
Taking the easy question first, punitive damages are not going to be allowed for a retaliation claim involving a violation of title II of the ADA. The United States Supreme Court in Barnes v. Gorman, 536 U.S. 181 (2002), made it clear that punitive damages are not allowed for violation of title II of the ADA or for violation of § 504 of the Rehabilitation Act.
However, with respect to compensatory damages, you get a different answer because the remedies of title II of the ADA trace back to the remedies for violating § 504 of the Rehabilitation Act, which does allow for compensatory damages providing, as we have discussed, if the plaintiff can show deliberate indifference.
See Bennett v. Board of Education Joint Vocational School District, 2011 U.S. Dist. Lexis 116412 (S.D. Ohio, October 7, 2011) (holding that Kramer does not apply to Title II of the ADA).
With respect to punitive damages, Barnes v. Gorman would seem to preclude that. With respect to compensatory damages, the answer is very much up in the air and here’s why: On the one hand, § 501 is a part of the Rehabilitation Act which allows for compensatory damages and retaliation is intentional discrimination. On the other hand, § 501 relates back to Title I of the ADA both in its statute and in its implementing regulations. Therefore, it might be possible to argue the logic of Kramer.
1. Retaliation claims always relate back to the underlying law involved. Therefore, the answer to whether compensatory and punitive damages are allowed for a retaliation claim involving violating the ADA, is going to depend upon the particular title and/or law involved.
2. For a nonfederal employee alleging retaliation, that person can expect the defense to argue per Kramer that compensatory and punitive damages are not available. Plaintiff will counter with Baker v. Windsor Republic Doors and Gomez-Potter. Ultimately, the Supreme Court will have to figure it out.
3. With respect to a claim of retaliation alleging a violation of title II of the ADA or § 504 of the Rehabilitation Act, compensatory damages are likely to be allowed but punitive damages are definitely out.
4. With respect to a federal employee, arguments exist both ways.
5. In short, for anybody alleging retaliation for violating title I of the ADA, title II of the ADA, § 501 of the Rehabilitation Act, one can expect defense attorneys to litigate the question of whether compensatory damages are available for a retaliation claim. In the case of a title I claim, one can also expect litigation over whether punitive damages for retaliation claim are available. With respect to title II of the ADA and §§ 501, 504 of the Rehabilitation Act, it is hard to believe that compensatory damages would not be allowed for retaliation claims, but we do know that punitive damages are out. In a nutshell, a plaintiff alleging retaliation can expect litigation over the remedies that the plaintiff will receive if the retaliation claim is successful.


§ 261-2 Registration of location; placement.
§ 261-3 Standards for installation, maintenance and operation.
§ 261-4 Location and placement.
§ 261-5 Violations and penalties.
Zoning and land development — See Ch. 271.
The person, firm, or corporation responsible for placing and maintaining a news vending machine in a public place in the Township of Maplewood.
That surface, whether improved or not, over and by which ingress and egress is made by vehicles from the roadway of a street and onto or into private or public property or by which vehicles move from private or public property onto a street.
Any newspaper, periodical or magazine of general circulation as defined by general law; any newspaper, periodical or magazine duly entered with the Post Office Department of the United States in accordance with federal statute or regulation; and any newspaper, periodical or magazine filed and recorded with any recording officer as provided by general law.
Any machine, rack, self-service or coin-operated box, container, storage unit or other dispenser utilized and maintained for the sale and distribution of newspapers, news periodicals/news magazines and any other similar publication.
That portion of any street improved, designed or ordinarily utilized for vehicular traffic.
Any surface provided for the exclusive use of pedestrians, including the area between the curb of any street and the sidewalk, or if there is no sidewalk, the area between the edge of the street and the property line adjacent thereto.
All that area dedicated to public use for public street purposes, and shall include but not be limited to roadways, parkways, alleys and sidewalks.
No distributor shall fail to notify the Construction Official of the Township of Maplewood, by written letter, of the location where it has installed any news vending machine which in whole or in part rests upon, in or over any public sidewalk of right-of-way. Such written notice must be received by the Construction Official of the Township of Maplewood no later than seven (7) days from the placement or installation of any news vending machine in any public place in the Township of Maplewood.
The precise location of each news vending machine placed or installed.
The name, address and telephone number of the distributor.
Within seven (7) days from the receipt by the Construction Official of the Township of Maplewood of the distributor's written notice, the Construction Official shall contact the distributor by written letter and inform the distributor whether or not the news vending machines are placed and installed so as to comport with the time, place and manner regulations set forth in this chapter.
If the distributor shall receive written notice from the Construction Official of the Township of Maplewood that a news vending machine is not placed or installed in conformity with the regulations set forth in this chapter, the distributor shall have seven (7) days from the date of receipt of said notice in which to adjust the placement of the news vending machine and to request written assurance from the Construction Official of the Township of Maplewood that the news vending machine is placed or installed in conformity with the terms of this chapter.
Should the distributor disagree with a finding of the Construction Official of the Township of Maplewood that the placement or installation of a news vending machine is not in conformity with the provisions and regulations of this chapter, the distributor shall have the right to petition the Township Committee of the Township of Maplewood, at least three (3) days before the public meeting next scheduled after the date of receipt of the notice, for a determination of whether or not the distributor's placement of the news vending machine meets the requirements set forth in this chapter. The Township Committee of the Township of Maplewood shall hear and receive evidence and testimony of the distributor and the Construction Official of the Township of Maplewood and shall then render a written opinion confirming or denying the propriety of the distributor's placement of the news vending machine.
Should the Township Committee of the Township of Maplewood determine that the distributor's placement of the news vending machine is not in accordance with the provisions of this chapter, the distributor shall have ten (10) days from the date of the decision in which to cause the placement of the news vending machine to conform to the terms of this chapter. Failure to do so will result in a summons being issued to the distributor pursuant to § 261-5 of this chapter.
Should the distributor disagree with the decision of the Township Committee of the Township of Maplewood, it shall have the right to appeal the decision by way of an action in lieu of a prerogative writ to the Superior Court of New Jersey, Law Division, Essex County. The manner and mode of such action is prescribed by the New Jersey Statutes and Rules of Court. If such an appeal is taken from the determination of the Township Committee, action on any summons issued pursuant to § 261-5 of this chapter will be stayed.
With respect to any news vending machines that may already be in place and situate on any public sidewalks, rights-of-way or any other public place within the Township of Maplewood, the distributor shall have twenty (20) days from the effective date of the chapter to comply with the requirements of this chapter. Failure to so comply will result in a summons being issued to the distributor pursuant to § 261-5 of this chapter.
No news vending machine shall exceed sixty (60) inches in height, twenty-four (24) inches in width or twenty-four (24) inches in thickness.
No news vending machine shall be used for advertising signs or publicity purposes other than that dealing with the display, sale or purchase of the newspaper, news periodical or news magazine sold therein.
Each news vending machine shall be equipped with a coin return mechanism to permit a person using the machine to secure an immediate refund in the event that the news vending machine door does not open. The coin return mechanism shall be maintained in good working order.
Each news vending machine shall have affixed to it on a readily visible place, so as to be seen by anyone using the news vending machine, a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction or to secure a refund in the event of a malfunction of the coin return mechanism or to give the notices provided for in this chapter.
The clear plastic or glass parts thereof, if any, through which the publications therein are viewed, are unbroken and reasonably free of cracks, dents, blemishes and discolorations.
Any news vending machine which rests in whole or in part upon or on any portion of a public sidewalk or public right-of-way or which projects onto, into or over any part of a public right-of-way shall be located in accordance with the provisions of this section.
No news vending machine shall be installed, used or maintained which projects onto, into or over any part of the roadway of any public street or which rests, wholly or in part, upon, along or over any portion of the roadway of any public street in which stopping, standing or parking is prohibited.
News vending machines shall not be chained or bolted to any public or private pole or stanchion.
News vending machines may be placed next to each other, provided that no group of news vending machines shall extend for a distance of more than six (6) feet along a curb.
Within three (3) feet of any marked crosswalk.
Within twelve (12) feet of a curb return of any unmarked crosswalk.
Within five (5) feet of any fire hydrant, fire call box, police call box or other emergency facility.
Within five (5) feet of any driveway.
No machines shall be placed in any sight triangle which is specifically defined in Section 623 of the Zoning and Regulation Ordinance.
Editor's Note: See Ch. 271, Zoning and Land Development.
Any distributor who shall fail to comply with the provisions of this chapter, upon conviction thereof in the Municipal Court of the Township of Maplewood, shall be punishable by a fine not to exceed one hundred dollars ($100.). The Construction Official or Police Department of the Township of Maplewood shall notify the distributor of his failure to comply with the provisions of this chapter and issue a summons for each day that the distributor fails to comply with the provisions of this chapter.
If the distributor is convicted of a violation of this chapter by the Municipal Court of the Township of Maplewood and fails and refuses to remedy the violation within ten (10) days of the date of the conviction, the Construction Official of the Township of Maplewood shall remove the particular news vending machine from the public sidewalk, right-of-way or other public place and return the news vending machine to the possession of the distributor who is identified on the news vending machine as having placed the news vending machine on the public sidewalk, right-of-way or other public place.
Any patron or person who defaces or vandalizes any news vending machine in the Township of Maplewood shall be charged with a disorderly persons offense in accordance with the criminal statutes of the State of New Jersey.


U.S. Supreme Court affirms decision of Tenth Circuit holding that federal law restoring copyright protection to foreign works previously in the public domain does not violate Copyright Clause or First Amendment free speech protections.
Petitioners, who formerly had enjoyed free access to foreign works in the public domain, brought suit asserting that Congress, in enacting §514 of the 1994 Uruguay Rounds Agreements Act granting copyright protection to those works, exceeded its authority under the Copyright Clause of the U.S. Constitution and violated their First Amendment rights. The district court granted the government’s motion for summary judgment and the Tenth Circuit affirmed in part, holding that Congress had not violated the Copyright Clause, but remanded the case for further proceedings on First Amendment implications in light of the Supreme Court’s 2003 decision in Eldred v. Ashcroft. On remand, the district court granted summary judgment to petitioners on their First Amendment claim, and on appeal the second time, the Tenth Circuit reversed, ruling that §514 was narrowly tailored to fit the important government aim of protecting U.S. copyright holders’ interests abroad. The U.S. Supreme Court affirmed the Tenth Circuit’s ruling, holding that Congress had not exceeded its authority under the Copyright Clause and that §514 did not violate the petitioners’ First Amendment rights.
Congress enacted the Uruguay Round Agreements Act to bring the U.S. into compliance with The Berne Convention for the Protection of Literary and Artistic Works, a long-standing international treaty to which the U.S. became a signatory in 1989 and which requires, among other things, that member countries protect the copyrighted works originated in other member states unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. Despite being a member country, the U.S. had not extended copyright protection to any foreign copyright-protected work not previously protected in the U.S. prior to 1994, when an additional treaty among the member countries required compliance with The Berne Convention. In enacting §514, Congress applied the term of copyright protection available to U.S. works to preexisting foreign works from member countries. Specifically, §514 grants copyright protection to works protected in their country of origin, but not protected in the U.S., for any of three reasons: (1) the U.S. did not protect works from the country of origin at the time of the works publication; (2) the U.S. did not protect sound recordings fixed before 1972; or (3) the author of the foreign work had failed to comply with statutory requirements for copyright protection – for example, failure to comply with notice or registration requirements. Works that had fallen into the public domain because of the expiration of a full copyright term, either their own country or the U.S., do not receive further copyright protection, and those works that are restored acquire copyright protection for the balance of the term they would have enjoyed, but not compensatory protection for the time lost.
The Supreme Court rejected the petitioners’ argument that, in passing §514,Congress had exceeded its authority, holding that the Copyright Clause did not exclude application of copyright protection to works in the public domain. Petitioners argued that the Copyright Clause’s language allowing Congress to grant authors exclusive rights to their works “for limited Times” prevented Congress from granting copyright protections once works had entered the public domain. The Court disagreed, finding that the language of Copyright Clause created no such restriction and noting that its 2003 decision in Eldred v. Ashcroft, in which the Court upheld the constitutionality of the Copyright Term Extension Act (CTEA) extending by 20 years the terms of existing copyrights, was largely dispositive of the argument. The Court reasoned that the terms afforded works restored by §514 were no less “limited” than those the CTEA lengthened, and noted that, in fact, the terms of restored foreign works were typically shorter than those of U.S. works. Petitioners argued that the limited time of protection for works already in the public domain had already passed, since works previously excluded from U.S. copyright protection had a time limit of “zero.” The Court disagreed, finding this argument made little sense and reasoning that a “limited time” of exclusivity must begin before it can end.
The Court noted that historical practice corroborated its reading of the Copyright Clause to permit the protection of previously unprotected works, citing the enactment of the Copyright Act of 1790, and other acts of Congress restoring the copyrights and patents of works and inventions that previously had lost protection.
Petitioners also argued that the First Amendment prohibited the restoration of copyright protection under §514. The Court disagreed, again finding its reasoning in Eldred compelling. In Eldred, the Court held that the CTEA’s extension of copyright protection did not offend the First Amendment’s freedom of expression guarantee. Acknowledging that while some restriction on expression was the inherent and intended effect of copyright protection, the Court reasoned copyright protection was not only for the purpose of limiting the manner in which works are used, but also as an engine of free expression. Copyright law already contained “speech-protective purposes and safeguards” – that protection extends only to the author’s expression of an idea, but not the idea itself, and is subject to the fair use defense. As it found with the CTEA in Eldred, the Court concluded it need not subject §514 to heightened scrutiny because the provision maintained the protections of the idea/expression distinction and the fair use defenses. The Court also noted that in enacting §514 Congress had specifically adopted measures to ease the transition, especially on those who had relied on those works being in the public domain before the act took effect.
The petitioners attempted to distinguish their case from Eldred, arguing that their First Amendment interests were of a “higher order” because they had enjoyed “vested rights” in those works in the public domain and Congress impermissibly took away those rights. The Court disagreed, finding that their claim rested on an argument that it had already rejected – that the Constitution renders the public domain largely untouchable by Congress. “Petitioners here attempt under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends.” According to the Court, however, nothing in the historical record, subsequent congressional practice, or its own jurisprudence warranted exceptional First Amendment protection for copyrighted works once in the public domain. Nor was this a case where Congress was attempting to regulate based on content.
The Court also noted §514 that did not impose a blanket prohibition on public access, but rather required would-be users of certain foreign works to pay for their desired use, or limit their exploitation to “fair use.” By fully complying with the Berne Convention, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same harmonize copyright regime. In fact, the court noted, §514 placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published.


Nos. WD 68613, WD 68720.
Appeal from the Circuit Court, Boone County, Cary George Augustine, J.
Charles J. Dykhouse, Esq., Columbia, MO, for appellant.
Timothy Alexander Reuschel, Esq., Kirksville, MO, for respondent.
Before JOSEPH M. ELLIS, P.J., RONALD R. HOLLIGER and JOSEPH P. DANDURAND, JJ.
Carol Alberty (Wife) appeals and William Alberty (Husband) cross appeals from the trial court's judgment and decree of dissolution of marriage. Both challenge the trial court's award of maintenance to Wife. The judgment is affirmed in part and reversed in part.
The parties were married on June 27, 1970. At the time of trial in November 2006, the parties had been married for thirty-six years, and Wife was almost fifty-eight years old. At the beginning of the marriage, Wife had a bachelor's degree in child development and family relations, had obtained a temporary teaching certificate, and began taking further education courses. She worked for three years as a teacher. She then became a homemaker and cared for the parties' children. She did not work outside of the home for the thirty-three years prior to trial. Wife was not qualified to teach at the time of trial and did not have a teaching certificate.
Wife suffers from several medical problems. She has had two back surgeries, a discectomy in 2003 and a fusion in 2004. She also suffers from diverticulitis, which resulted in a surgery and hospitalization shortly before trial. A letter written by Wife's physician was introduced into evidence and outlined her limitations. Specifically, the physician recommended that she not lift more than fifteen pounds or engage in repetitive bending, lifting, climbing, or crawling. He also recommended that Wife avoid staying in one position for more than thirty minutes at a time. Wife further testified that if she sits or stands for too long, she experiences stiffness or pain in her back and legs. Finally, Wife testified that she is willing to work and that she has looked online and in the newspaper but has not found employment that she is qualified for or physically able to do.
During the marriage, Husband practiced law in Edina and served as the prosecutor of Knox County. For the five years prior to the trial, Husband's average income was $106,000 per year. At the time of trial, he had been elected to serve as an associate circuit judge in Knox County. His four-year term began January 1, 2007. As an associate circuit judge, he would earn $8000 per month. Husband agreed at trial that Wife needed maintenance and proposed to pay her $2500 per month for four years since he only planned to serve one term. Husband also testified that if he did seek a second term, he should pay maintenance for as long as he was actively employed as a judge.
In 1984, Wife caught Husband with another woman, his legal secretary. At the time, Husband admitted to kissing and touching the woman, and promised it would never happen again. The parties reconciled. In 2000, Wife discovered Husband and the same woman in a compromising position in his office. Again, the parties attempted to reconcile. Ultimately, Wife decided she could not trust or respect Husband, and the parties separated in September 2005. Wife subsequently moved from Edina to Columbia.
Trial was held in November 2006. The trial court entered a Qualified Domestic Relations Order (QDRO) on February 26, 2007, awarding Wife fifty percent of Husband's prosecutor retirement benefits for a monthly income of $1046. The trial court entered its judgment and decree of dissolution of marriage on May 2, 2007. The court ordered Husband to pay Wife maintenance of $2600 per month for four years. It also designated the maintenance award as non-modifiable. This appeal by Wife and cross appeal by Husband followed.
A decree of dissolution will be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Farris v. Farris, 75 S.W.3d 345, 347 (Mo.App. W.D. 2002). The evidence is viewed in the light most favorable to the decree, and all evidence to the contrary is disregarded. Henning v. Henning, 72 S.W.3d 241, 245 (Mo.App.W.D. 2002). "The party challenging the dissolution judgment has the burden of demonstrating error." Id.
A trial court has broad discretion in determining whether to award maintenance. Farris, 75 S.W.3d at 347. Its decision will not be reversed absent an abuse of discretion. Id. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to indicate indifference and a lack of careful judicial consideration. Cohen v. Cohen, 73 S.W.3d 39, 53 (Mo.App.W.D. 2002). "If reasonable persons can differ about the propriety of the trial court's action, it cannot be said that the trial court abused its discretion." Id.
In their appeals, Wife and Husband both challenge the trial court's award of maintenance. Wife claims that the trial court abused its discretion in limiting the duration of her maintenance, designating it as nonmodifiable, and prospectively decreasing the award upon her receipt of Social Security benefits. Husband contends that the trial court abused its discretion in failing to impute income to Wife in determining the maintenance award.
§ 452.335.2, RSMo 2000; Sweet v. Sweet, 154 S.W.3d 499, 504-05 (Mo.App.W.D. 2005). "The court is to apply the factors so as to balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay." Sweet, 154 S.W.3d at 505.
Husband's cross appeal is addressed first. In his sole point, he claims that the trial court abused its discretion in failing to impute income to Wife in determining the maintenance award. Specifically, Husband contends that substantial evidence was presented that Wife had the desire and ability to work but had not sought employment based on the advice of her attorney.
"'The purpose of maintenance is to assist a spouse who is unable to be self-supporting through appropriate employment.'" Thomas v. Thomas, 76 S.W.3d 295, 302 (Mo.App. W.D. 2002) (quoting Creech v. Creech, 992 S.W.2d 226, 229-30 (Mo.App.E.D. 1999)). `"Appropriate employment' is employment that is appropriate to a person's skills and interests." Id. The decision whether to impute income to a spouse in awarding maintenance depends upon the particular facts of each case. Id. at 303. The trial court can impute income to a spouse seeking maintenance according to what she could earn using her best efforts to gain employment suitable to her capabilities. Id.
In this case, Husband conceded at trial that Wife needed maintenance. He only disputes the amount of the award arguing that income should have been imputed to Wife based on her ability to partially support herself through employment.
The trial court expressly declined to impute employment income to Wife "[g]iven the age, physical limitations, and specific skills of [Wife]." This decision was supported by substantial evidence in the record. Wife turned fifty-eight years old the week after trial. She had not been employed outside the home for most of the marriage, specifically, the thirty-three years prior to trial. Although she had a bachelor's degree in child development and family relations and had worked as a teacher at the beginning of the marriage, Wife was not qualified to teach at the time of trial and did not have a teaching certificate. Furthermore, Wife suffers from several medical problems. Since 2003, she has had two back surgeries and an additional surgery and hospitalization because of diverticulitis. According to her physician, she cannot lift more than fifteen pounds, engage in repetitive bending, lifting, climbing, or crawling, or sit or stand in one position for more than thirty minutes at a time.
Wife testified that she is willing to work but is unsure what she would be able to do with her physical limitations and lack of qualifications. She also stated that the emotional toll and stress caused by her move to Columbia, being on her own for the first time in her life, and the ending of her marriage further delayed her obtaining a job. Regarding her attorney's advice about seeking employment, Wife explained that she told her attorney three weeks after moving to Columbia that she wanted to get a job but that she had all of these concerns. They both decided Wife should not rush out to find employment until she was mentally ready. Wife further testified that although she has not yet applied for any jobs, she has been searching the newspaper and online ads but has not found employment that she is qualified for or physically able to do. Based on the particular facts of this case, the trial court did not abuse its discretion in failing to impute income to Wife for maintenance purposes. The point is denied.
In Wife's appeal, she claims that the trial court abused its discretion in limiting the duration of her maintenance, designating it as non-modifiable, and prospectively decreasing the award upon her receipt of Social Security benefits. Wife introduced two income and expense statements into evidence — one establishing her monthly expenses at $3188 and the second establishing her monthly expenses at $5281 if she were to buy a house. The trial court found that Wife will require $3600 per month to meet her reasonable needs, which was supported by the evidence. Wife receives $1046 from prosecutor retirement benefits. The trial court, therefore, ordered Husband to pay $2600 per month in maintenance. The court, however, limited the duration of the maintenance award to four years and designated it non-modifiable.
Husband does not raise the issue of whether the $2600 maintenance award together with the $1046 Wife receives in prosecutor retirement benefits exceeds Wife's reasonable needs of $3600 by $46, and the issue is not addressed in this opinion.
"[T]he judicial preference is for a maintenance award of unlimited duration." Lincoln v. Lincoln, 16 S.W.3d 346, 347 (Mo.App.W.D. 2000). A maintenance award of limited duration is justified only where there is substantial evidence of an impending change in the financial condition of the parties. Id. "'Maintenance awards of limited duration cannot be based on mere speculation as to the future conditions of the parties.'" Haynes v. Almuttar, 25 S.W.3d 667, 673 (Mo.App.W.D. 2000) (quoting Tillock v. Tillock, 877 S.W.2d 161, 162 (Mo.App.E.D. 1994)). If no evidence is presented or no reasonable expectation can be made that the circumstances of the parties will be markedly different in the future, maintenance should not be prospectively terminated or decreased. Laffey v. Laffey, 72 S.W.3d 143, 151 (Mo.App.W.D. 2002); Lincoln, 16 S.W.3d at 347. "In determining a spouse's ability to support herself in the future, `the trial court may consider probable future prospects, but the evidence must justify the inference that the spouse will realize such expectations.'" Haynes, 25 S.W.3d at 673 (quoting Burrus v. Burrus, 754 S.W.2d 882, 886 (Mo.App.W.D. 1988)). "The benefits or potential benefits derived from social security are economic factors to be considered, along with other factors, in the award of maintenance." Laffey, 72 S.W.3d at 151; Milligan v. Helmstetter, 15 S.W.3d 15, 23 (Mo.App.W.D. 2000).
Similarly, modifiable maintenance awards are generally preferred by trial courts. In re Marriage of Michel, 142 S.W.3d 912, 925 (Mo.App.S.D. 2004). This is so because maintenance is founded on need and may extend only as long as the need exists. Id.; Burnett v. Burnett, 18 S.W.3d 27, 33 (Mo.App.W.D. 2000). "'Thus, if it is uncertain that future events might obviate the need or basis on which maintenance is predicated, the award should be modifiable.'" Burnett, 18 S.W.3d at 33 (quoting Allen v. Allen, 927 S.W.2d 881, 890 (Mo.App.W.D. 1996)). A nonmodifiable maintenance award must be justified by the facts and circumstances of the particular case. Michel, 142 S.W.3d at 925; Burnett, 18 S.W.3d at 33.
At trial, Husband proposed that he pay Wife $2500 per month in maintenance for four years. Evidence was introduced that Wife will be eligible to receive Social Security benefit payments of between $800 and $1080 when she turns sixty-two years old in four years. Husband also testified that he plans on serving only one term, four years, as an associate circuit judge because he will reach the mandatory retirement age of seventy years old during the third year of a second term. If, however, he does serve a second term, he would agree to continue providing maintenance.
This evidence, however, does not support the limitation of the duration of the maintenance award or its designation as non-modifiable. First, while the evidence demonstrated that Wife has a reasonable expectation that she will be eligible to receive Social Security payments of between $800 and $1080 when she turns sixty-two years old, she would still be left with a deficit of $1520 to $1800 to meet her reasonable needs if maintenance terminates at that point. The future receipt of Social Security alone would not obviate Wife's need for maintenance.
Q: You are asking that the Court award Ms. Alberty maintenance in the amount of $2500 a month. Are you asking that the duration be limited?
A: I feel like it should be limited to the four years — starting January 1st, the four years I'm going to actively be working, which will be my first term as a judge. Or maybe a better way to put it, as long as I am judge. If for some reason I sought a second term, I would not be opposed to it continuing as long as I was actively employed. But once I retire, I feel like it ought to cease, because by that point she's going to get a good share of the retirement and she will be of an age at that point where she can draw Social Security benefits.
It is speculative whether Husband's ability to pay maintenance will decrease after four years. Husband himself testified that he should pay maintenance for as long as he was actively employed as a judge, which could be as long as seven years if he were to serve part of a second term. Thus, the record does not support a reasonable expectation that the parties' circumstances will be markedly different in four years. To the contrary, uncontroverted evidence was offered that Wife's health insurance costs would rise from $500 per month to over $800 per month nine months after trial when her COBRA coverage expired and that her prescriptions of between $100 and $300 per month would not be covered by her new insurance. Additionally, Wife would not be eligible for Medicare for seven years. The trial court's termination of Wife's maintenance award after four years and its designation of the award as non-modifiable were based on speculation and, thus, was an abuse of discretion.
Husband argues that, at trial, Wife requested maintenance for only four years and cannot now argue on appeal that the trial court abused its discretion in limiting the duration of maintenance to four years. Review of the record reveals, however, that Wife requested maintenance for as long as Husband is employed — whether it be four or seven years.
The trial court, however, did not abuse its discretion in ordering that Husband's maintenance obligation shall decrease by any amount in Social Security benefits actually received by Wife upon reaching age sixty-two. As previously stated, the record demonstrated that Wife has a reasonable expectation that she will be eligible to receive Social Security payments when she turns sixty-two years old. Whatever amount Wife actually receives in Social Security benefits, the trial court's order reduces the maintenance award dollar-for-dollar. Regardless of the source, Wife is guaranteed to receive the additional $2600 per month to meet her reasonable needs. Reduction in Husband's maintenance obligation by the amount Wife receives from Social Security was supported by substantial evidence. See Laffey, 72 S.W.3d at 151 (where Wife had reasonable expectation that she would receive Social Security benefits in near future, trial court did not abuse its discretion in reducing maintenance award dollar-for-dollar based on the benefits she receives effectively making Husband the guarantor that Wife would receive a determinable amount of income); Estes v. Estes, 767 S.W.2d 370, 372-73 (Mo.App. W.D. 1989) (trial court did not abuse its discretion in ordering $300 maintenance award to terminate on Wife's sixty-second birthday when she would be come eligible for Social Security payments of $300).
The judgment awarding Wife $2600 per month in maintenance is affirmed. Likewise, the trial court's order that Husband's maintenance obligation shall decrease by any amount in Social Security benefits actually received by Wife upon turning sixty-two years old is affirmed. The judgment limiting the duration of the maintenance award to four years and designating the award non-modifiable is reversed. It is ordered, adjudged, and decreed by the Court that Respondent, William E. Alberty shall pay to Petitioner, Carol E. Alberty, $2600 per month in modifiable maintenance without limit as to duration. Rule 84.14.
ELLIS, P.J., and HOLLIGER, J. concur.


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1.	JPLAY – a computer program with the commercial name of JPLAY in accordance with the Copyrights and Related Rights Act dated 04 February 1994. JPLAY is a program for playing audio files which comprises: JPLAY FEMTO UPnP Renderer, JPLAY femtoServer UPnP media server, JPLAY Audio Service playback engine , virtual ASIO JPLAY Driver and minimalist player JPLAYmini.
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Sudden Acceleration | Abrams & Abrams, P.A.
The main defense in sudden acceleration cases has been the inability of the Plaintiff to duplicate the incident. This single issue has been the basis upon which many, if not all, Defendants have sought to defeat meritorious claims. Many attorneys who have handled sudden acceleration cases have concluded the answer lies somewhere in the computer chips which were employed in the vehicles. One recent case, in particular, has demonstrated that at least General Motors has recognized the problem of radio interference (RF) or Electromagnetic Interference (EMI) and their effects on the Cruise Control Systems of General Motors vehicles. Another effect of RF may be to set up resonances which cause the cruise control to activate.
Another similar mechanism explaining sudden acceleration is vibrations. This mechanism may be particularly applicable in cruise control systems that use servo systems.
Please note that because of their voluminous nature, I am unable to attach the documents that I reference throughout this paper. However, if you would like copies of any of these documents, please feel free to contact my office.
The wide array of instances involving sudden and inadvertent acceleration constitutes powerful evidence that the phenomenon exists. In the case of Stuart v. General Motors, a jury returned a substantial verdict against General Motors in a case involving sudden acceleration. The case was reported as an unpublished opinion by the North Carolina Court of Appeals, however, the transcript of the trial is available. This trial offers some important information into the jury's consideration of evidence related to Sudden Acceleration.
"During radiated Suspectibility samples #4, #5, and #7 could be induced to pull full servo while in cruise mode (brake remained functional and provided escape condition)." See A Controller Module, Request for Test, page 2, dated 10/28/86.
Equally significant is the fact that General Motors found that it could induce a wide open throttle condition with the introduction of bulk current into the system. See "Vehicle Status for U.A. Investigations at EMC," dated May 8, 1987. On May 13, 1987, through the injection of bulk current, General Motors own test revealed that a wide open throttle condition resulted. This Wide Open throttle condition occurred in park, drive, reverse and idle. It was completely unrelated to any driver input because there was no driver involved in the testing. See Page A-5 of the Vehicle Status Report. This event was found to be repeatable. The bulk current was a 1.9-8.5 MHZ. Two days later, a General Motors employee conducting the tests reported: "Found W.O.T. [wide open throttle]. It has been determined that the internal tach is RF susceptible. It will no longer be used." This drew the comment from a supervisor: "WOW." See Page 6, document bates numbered 202241. Similar testing by General Motors revealed similar results. On June 15, 1987, the General Motors testing again revealed that Wide Open Throttle (W.O.T.) was being induced by 1.9 MHZ to 44 MHZ BCI. See Page B-12, document bates numbered 202249. These results were not mentioned in one General Motors summary of these tests, entitled "AC Involvement in Alleged Unintended Acceleration Investigations." According to that author, "AC performs excessive testing of controller to re-evaluate radiated EMC and conducted transient susceptibility No unintended acceleration conditions observed during these tests." See document dated September 22, 1987 and Larry Hocken is named contact person for further unintended acceleration investigation.
Discovery in the Stuart case revealed that General Motors had experienced its own unintended acceleration events with General Motor owned vehicles. On August 22, 1987, at the Willow Run, Michigan General Motors facility, Mr. Jeff Talton crashed into a gate post. See incident report attached to this paper and introduced as evidence in Stuart v. General Motors. Mr. Talton started his 1988 Pontiac Bonneville and put it in reverse. Suddenly the vehicle accelerated into wide open throttle -- despite the fact his foot was on the brake. See incident report introduced as evidence in Stuart v. General Motors. General Motors had an engineer, Mr. Michael Holcomb, examine the vehicle. Mr. Holcomb has testified in a number of cases and it would be interesting to read if he has identified this particular investigation. In another similar set of events, a General Motors Dealership, Arrow Oldsmobile in Milwaukee, Wisconsin reported three separate vehicles in which unintended and sudden acceleration occurred. See Warranty Analysis and Savings Program, dated April 2, 1986. According to the dealership, a salesman was preparing to have a car examined by a potential customer. He put the car in park for approximately four minutes. When he placed the car into drive from the park position, the car accelerated beyond control. In fact, the salesman could not stop the car with both feet stomping on the brake pedal. See Warranty Analysis and Savings Program, dated April 2, 1986. This dealership had a second vehicle experience the same type event. In this instance a service technician started to back out of a parking lot when the vehicle took off. The service technician asserted that he was unable to stop the vehicle even with his foot on the brakes.
This odd scenario repeated itself in an almost identical fashion when a 1986 H-car suddenly accelerated while a salesman was demonstrating the car to a customer. The salesman reported that he felt the pedal pull away from his foot while he put the car into drive. Warranty and Safety Analysis, dated June 26, 1986. A particularly telling statement comes in a handwritten note attached to this report, which states, "VanLandingham regards the "CRUISE" light as indicative of where the failure may be occurring, but I'm not so sure. There may be a path for RF to turn it on." See document bates numbered 202171. In reality, General Motors like all vehicle manufacturers realized long ago that there vehicles were experienced unintended wide open throttle conditions. However, due the transient nature of this dangerous condition, real world duplication of the exact failure is difficult at best. Therefore, the key element for General Motors was to maintain deniability.
Another aspect investigated by General Motors was the effect of vehicle vibration on the cruise control system. On June 29, 1987, General Motors engineers reported on the results of their tests on the effects of vibrations. See Cruise Control Vibrations dated June 29, 1987 attached hereto. This report offered the conclusion that "The cruise control vacuum valve can be opened by vehicle vibration levels experienced under fast idle conditions." See Cruise Control Vibrations dated June 29, 1987 attached hereto. The report further concluded that the "cruise control valve can't be closed by vehicle vibration." See Cruise Control Vibrations dated June 29, 1987 attached hereto. Importantly, these engineers reported that the "cruise control servo vibration is amplified by resonances of its mounting bracket at 28 to 56 MHZ." See Cruise Control Vibrations dated June 29, 1987 attached hereto. On July 27, 1987, in a huge understatement, the author remarks, There was a general agreement that the servo vibration sensitivity was undesirable and steps to reduce or eliminate that sensitivity was discussed. See Joint Meeting on Cruise System, dated July 27, 1987 attached hereto. Engineering Investigations also authored a paper revealing the fault conditions necessary for a vent valve to stick. (1) ignition cycles or cruise switch cycles pulse vacuum valve or (2) vibration at cruise servo can unseat vacuum valve and cause a rapid increase in engine speed.
The trial in Stuart v. General Motors had an interesting posture. The driver of the car was a co-defendant. The driver asserted a cross-claim against General Motors. Frank Graham, the defense attorney for the driver, did a marvelous job at trial of showing how absurd it was for General Motors to assert that every unintended acceleration was the result of driver error. In the end, one of the key factors included the factor that General Motors was testing for various types of radiated electronic interference, but nonetheless contended that electronic interference could never affect the cruise control.
Mr. Rex Kenney is a engineer in California and was the purchaser of a Chrysler Jeep Cherokee. This vehicle began to suddenly accelerate. Mr. Kenney attempted to have these problems repaired. In a typical stance taken by Chrysler, Mr. Kenney was told that he was simply mistaken and that his Jeep Cherokee would not suddenly accelerate. Unlike many consumers, Mr. Kenney continued to pursue this issue. He made a Freedom of Information Request to the NHTSA and this request yielded some critical documents -- documents which were later contested by Chrysler and apparently removed from the public files. Furthermore, Mr. Kenney carried a videotape camera and recorded some instances of his vehicle's malfunctioning. As Mr. Kenney learned, Chrysler instituted a Task Force to examine unintended acceleration. See Exhibits from Rex Kenney Deposition in Colonna v. Chrysler. The materials obtained by Mr. Kenney are now in the possession of the ATLA Sudden Acceleration Litigation Group. Importantly, Chrysler had previously denied the existence of any such Task Force. See Plaintiff's Reply to Defendant's Response to Plaintiff's Memorandum In Support of Plaintiff's Motion for Sanctions and to Strike Defendant's Expert Testimony in Colonna v. Chrysler. These documents reveal a series of problems with inadvertent acceleration. Finally, much of the documentation in Colonna v. Chrysler was subject to a Protective Order. Additionally, in Sellers v. Chrysler, yet another death resulted from the sudden acceleration of a Jeep Cherokee. See Complaint in Sellers v. Chrysler.
The existence of Sudden Acceleration can scarcely be argued by the vehicle manufacturers. The Stuart case illustrates the fact that jurors understand that random errors by the internal computers of vehicles are not necessarily capable of being fully duplicated. As a practical matter, some of the most important testimony in these cases are the eye-witnesses to the wreck. For example, a vehicle suddenly accelerating in reverse with a wide open throttle is entirely consistent with a malfunctioning cruise control system. Additionally, the proof of other similar occurrences demonstrates to the jury this event is not a singular and isolated event. Even more productive evidence is likely to come from the testimony of component part suppliers and correspondence between the vehicle manufacturer and the supplier. Additionally, although the manufacturers consistently claim that mere application of a brake would stop the vehicle, drivers have frequently reported being unable to stop the vehicle with the brake pedal mashed to the floor. Thus, eye-witnesses who recall either brake lights or the vehicle continuing to accelerate or maintain a wide open throttle even after the driver has left the vehicle can be critical to the proof of a sudden acceleration case.

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The principal document I have at my disposal at today’s date (March 8/21) is a copy of that most conservative and bourgeois English newspaper The Times of March 16, containing a batch of reports about the revolution in Russia. Clearly, a source more favourably inclined – to put it mildly – towards the Guchkov and Milyukov government it would not be easy to find.
What political sagacity and clarity this reveals. How well this Englishman, who thinks like (if he does not guide) the Guchkovs and Milyukovs, understands the alignment of class forces and interests! “The most moderate elements among his loyal subjects”, i.e., the monarchist landlords and capitalists, want to take power into their hands, fully realising that otherwise “influence” will pass into the hands of the “socialists”. Why the “socialists” and not somebody else? Because the English Guchkovite is fully aware that there is no other social force in the political arena, nor can there be. The revolution was made by the proletariat. It displayed heroism; it shed its blood; it swept along with it the broadest masses of the toilers and the poor; it is demanding bread, peace and freedom; it is demanding a republic; it sympathises with socialism. But the handful of landlords and capitalists headed by the Guchkovs and Milyukovs want to betray the will, or strivings, of the vast majority and conclude a deal with the tottering monarchy, bolster it up, save it: appoint Lvov and Guchkov, Your Majesty, and we will be with the monarchy against the people. Such is the entire meaning, the sum and substance of the new government’s policy!
But how to justify the deception, the fooling of the people, the violation of the will of the overwhelming majority of the population?
By slandering the people – the old but eternally new method of the bourgeoisie. And the English Guchkovite slanders, scolds, spits and splutters: “anarchy within and disaster without”, no “orderly government”!!
That is not true, Mr. Guchkovite! The workers want a republic; and a republic represents far more “orderly” government than monarchy does. What guarantee have the people that the second Romanov will not get himself a second Rasputin? Disaster will be brought on precisely by continuation of the war, i.e., precisely by the new government. Only a proletarian republic, backed by the rural workers and the poorest section of the peasants and town dwellers, can secure peace, provide bread, order and freedom.
All the shouts about anarchy are merely a screen to conceal the selfish interests of the capitalists, who want to make profit out of the war, out of war loans, who want to restore the monarchy against the people.
0 great English, Guchkovite diplomat! How “imprudently” you have blurted out the truth!
“The Social-Democratic Party” and their “less prudent associates” with whom “Kerensky and Chkheidze have to reckon”, evidently mean the Central or the St. Petersburg Committee of our Party, which was restored at the January 1912 Conference, those very same “Bolsheviks” at whom the bourgeoisie always hurl the abusive term “doctrinaires”, because of their faithfulness to the “doctrine”, i.e., the fundamentals, the principles, teachings, aims of socialism. Obviously, the English Guchkovite hurls the abusive terms seditious and doctrinaire at the manifesto and at the conduct of our Party in urging a fight for a republic, peace, complete destruction of the tsarist monarchy, bread for the people.
Bread for the people and peace – that’s sedition, but ministerial posts for Guchkov and Milyukov – that’s “order” Old and familiar talk!
What, then, are the tactics of Kerensky and Chkheidze as characterised by the English Guchkovite?
Vacillation: on the one hand, the Guchkovite praises them: they “realise” (Good boys! Clever boys!) that without the “support” of the army officers and the more moderate elements, anarchy cannot be avoided (we, however, have always thought, in keeping with our doctrine, with our socialist teachings, that it is the capitalists who introduce anarchy and war into human society, that only the transfer of all political power to the proletariat and the poorest people can rid us of war, of anarchy and starvation!). On the other hand, they “have to reckon with their less prudent associates”, i.e., the Bolsheviks, the Russian Social-Democratic Labour Party, restored and united by the Central Committee.
What is the force that compels Kerensky and Chkheidze to “reckon” with the Bolshevik Party to which they have never belonged, which they, or their literary representatives (Socialist-Revolutionaries, Popular Socialists, the Menshevik 0. C. supporters, and so forth), have always abused, condemned, denounced as an insignificant underground circle, a sect of doctrinaires, and so forth? Where and when has it ever happened that in time of revolution, at a time of predominantly mass action, sane-minded politicians should “reckon” with “doctrinaires”??
He is all mixed up, our poor English Guchkovite; he has failed to produce a logical argument, has failed to tell either a whole lie or the whole truth, he has merely given himself away.
Kerensky and Chkheidze are compelled to reckon with the Social-Democratic Party of the Central Committee by the influence it exerts on the proletariat, on the masses. Our Party was found to be with the masses, with the revolutionary proletariat, in spite of the arrest and deportation of our Duma deputies to Siberia, as far back as 1914, in spite of the fierce persecution and arrests to which the St. Petersburg Committee was subjected for its underground activities during the war, against the war and against tsarism.
“Facts are stubborn things,” as the English proverb has it. Let me remind you of it, most esteemed English Guchkovite! That our Party guided, or at least rendered devoted assistance to, the St. Petersburg workers in the great days of revolution is a fact the English Guchkovite “himself” was obliged to admit. And he was equally obliged to admit the fact that Kerensky and Chkheidze are oscillating between the bourgeoisie and the proletariat. The Gvozdyovites, the “defencists”, i.e., the social-chauvinists, i.e., the defenders of the imperialist, predatory war, are now completely following the bourgeoisie; Kerensky, by entering the ministry, i.e., the second Provisional Government, has also completely deserted to the bourgeoisie; Chkheidze has not; he continues to oscillate between the Provisional Government of the bourgeoisie, the Guchkovs and Milyukovs, and the “provisional government” of the proletariat and the poorest masses of the people, the Soviet of Workers’ Deputies and the Russian Social-Democratic Labour Party united by the Central Committee.
Consequently, the revolution has confirmed what we especially insisted on when we urged the workers clearly to realise the class difference between the principal parties and principal trends in the working – class movement and among the petty bourgeoisie – what we wrote, for example, in the Geneva Sotsial-Demokrat No. 47, nearly eighteen months ago, on October 13, 1915.
But let us return to the English Guchkovite.
The Guchkovites were for a civil war from which they would benefit, but they are against a civil war from which the people, i.e., the actual majority of the working people, would benefit.
“...The relations between the Provisional Committee of the Duma, which represents the whole nation [imagine saying this about the committee of the landlord and capitalist Fourth Duma!], and the Council of Labour Deputies, representing purely class interests [this is the language of a diplomat who has heard learned words with one ear and wants to conceal the fact that the Soviet of Workers’ Deputies represents the proletariat and the poor, i.e., nine-tenths of the population], but in a crisis like the present wielding enormous power, have aroused no small misgivings among reasonable men regarding the possibility of a conflict between them – the results of which might be too terrible to describe.
What this agreement was, whether it was concluded with the whole of the Soviet of Workers’ Deputies and on what terms, we do not know. On this chief point, the English Guchkovite says nothing at all this time. And no wonder! It is not to the advantage of the bourgeoisie to have these terms made clear, precise and known to all, for it would then be more difficult for it to violate them!
The preceding lines were already written when I read two very important communications. First, in that most conservative and bourgeois Paris newspaper Le Temps of March 20, the text of the Soviet of Workers’ Deputies manifesto appealing for “support” of the new government; second, excerpts from Skobelev’s speech in the State Duma on March 1 (14), reproduced in a Zurich newspaper (Neue Zürcher Zeitung, 1 Mit.-bl., March 21) from a Berlin newspaper (National Zeitung).
The manifesto of the Soviet of Workers’ Deputies, if the text has not been distorted by the French imperialists, is a most remarkable document. It shows that the St. Petersburg proletariat, at least at the time the manifesto was issued, was under the predominating influence of petty-bourgeois politicians. You will recall that in this category of politicians I include, as has been already mentioned above, people of the type of Kerensky and Chkheidze.
Firstly. The manifesto says that the government (the new one) consists of “moderate elements”. A strange description, by no means complete, of a purely liberal, not of a Marxist character. I too am prepared to agree that in a certain sense – in my next letter I will show in precisely what sense – now, with the first stage of the revolution completed, every government must be “moderate”. But it is absolutely impermissible to conceal from ourselves and from the people that this government wants to continue the imperialist, war, that it is an agent of British capital, that it wants to restore the monarchy and strengthen the rule of the landlords and capitalists.
The manifesto declares that all democrats must “support” the new government and that the Soviet of Workers’ Deputies requests and authorises Kerensky to enter the Provisional Government. The conditions – implementation of the promised reforms already during the war, guarantees for the “free cultural” (only??) development of the nationalities (a purely Cadet, wretchedly liberal programme), and the establishment of a spec a committee consisting of members of the Soviet of Workers’ Deputies and of “military men” to supervise the activities of the Provisional Government.
This Supervising Committee, which comes within the second category of ideas and slogans, we will discuss separately further on.
The appointment of the Russian Louis Blanc, Kerensky, and the appeal to support the new government is, one may say, a classical example of betrayal of the cause of the revolution and the cause of the proletariat, a betrayal which doomed a number of nineteenth-century revolutions, irrespective of how sincere and devoted to socialism the leaders and supporters of such a policy may have been.
The proletariat cannot and must not support a war government, a restoration government. To fight reaction, to rebuff all possible and probable attempts by the Romanovs and their friends to restore the monarchy and muster a counter revolutionary army, it is necessary not to support Guchkov and Co., but to organise, expand and strengthen a proletarian militia, to arm the people under the leadership of the workers. Without this principal, fundamental, radical measure, there can be no question either of offering serious resistance to the restoration of the monarchy and attempts to rescind or curtail the promised freedoms, or of firmly taking the road that will give the people bread, peace and freedom.
If it is true that Chkheidze, who, with Kerensky, was a member of the first Provisional Government (the Duma committee of thirteen), refrained from entering the second Provisional Government out of principled considerations of the above-mentioned or similar character, then that does him credit. That must be said frankly. Unfortunately, such an interpretation is contradicted by the facts, and primarily by the speech delivered by Skobelev, who has always gone hand in hand with Chkheidze.
Skobelev said, if the above-mentioned source is to be trusted, that “the social [? evidently the Social-Democratic] group and the workers are only slightly in touch (have little contact) with the aims of the Provisional Government”, that the workers are demanding peace, and that if the war is continued there will be disaster in the spring anyhow, that “the workers have concluded with society [liberal society] a temporary agreement [eine vorläufige Waffenfreundschaft], although their political aims are as far removed from the aims of society as heaven is from earth”, that “the liberals must abandon the senseless [unsinnige] aims of the war”, etc.
This speech is a sample of what we called above, in the excerpt from Sotsial-Demokrat. “oscillation” between the bourgeoisie and the proletariat. The liberals, while remaining liberals, cannot “abandon” the “senseless” aims of the war, which, incidentally, are not determined by them alone, but by Anglo-French finance capital, a world-mighty force measured by hundreds of billions. The task is not to “coax” the liberals, but to explain to the workers why the liberals find themselves in a blind alley, why they are hound hand and foot, why they conceal both the treaties tsarism concluded with England and other countries and the deals between Russian and Anglo-French capital, and so forth.
If Skobelev says that the workers have concluded an agreement with liberal society, no matter of what character, and since he does not protest against it, does not explain from the Duma rostrum how harmful it is for the workers, he thereby approves of the agreement. And that is exactly what he should not do.
Skobelev’s direct or indirect, clearly expressed or tacit, approval of the agreement between the Soviet of Workers’ Deputies and the Provisional Government is Skobelev’s swing towards the bourgeoisie. Skobelev’s statement that the workers are demanding peace, that their aims are as far removed from the liberals’ aims as heaven is from earth, is Skobelev’s swing towards the proletariat.
Purely proletarian, truly revolutionary and profoundly correct in design is the second political idea in the manifesto of the Soviet of Workers’ Deputies that we are studying, namely, the idea of establishing a “Supervising Committee” (I do not know whether this is what it is called in Russian; I am translating freely from the French), of proletarian-soldier supervision over the Provisional Government.
Now, that’s something real! it is worthy of the workers who have shed their blood for freedom, peace, bread for the people! It is a real step towards real guarantees against tsarism, against a monarchy and against the monarchists Guchkov, Lvov and Co.! It is a sign that the Russian proletariat, in spite of everything, has made progress compared with the French proletariat in 1848, when it “authorised” Louis Blanc! It is proof that the instinct and mind of the proletarian masses are not satisfied with declamations, exclamations, promises of reforms and freedoms, with the title of “minister authorised by the workers”, and similar tinsel, but are seeking support only where it is to be found, in the armed masses of the people organised and led by the proletariat, the class-conscious workers.
It is a step along the right road, but only the first step.
If this “Supervising Committee” remains a purely political-type parliamentary institution, a committee that will “put questions” to the Provisional Government and receive answers from it, then it will remain a plaything, will amount to nothing.
I will set out my ideas about this workers’ militia in my next letter.
In it I will try to show, on the one hand, that the formation of a militia embracing the entire people and led by the workers is the correct slogan of the day, one that corresponds to the tactical tasks of the peculiar transitional moment through which the Russian revolution (and the world revolution) is passing; and, on the other hand, that to be successful, this workers’ militia must, firstly, embrace the entire people, must be a mass organisation to the degree of being universal, must really embrace the entire able-bodied population of both sexes; secondly, it must proceed to combine not only purely police, but general state functions with military functions and with the control of social production and distribution.
P.S. I forgot to date my previous letter March 20 (7).
 See present edition, Vol. 21, p. 403. – Ed.
 The first Provisional Government, or the Provisional Committee of the State Duma, was formed on February 27 (March 12), 1917. On that day the Duma Council of Doyens sent a telegram to the tsar drawing his attention to the critical situation in the capital and urging immediate measures “to save the fatherland and the dynasty”. The tsar replied by sending the Duma President, M. V. Rodzyanko, a decree dissolving the Duma. By this time the insurgent people had surrounded the Duma building, the Taurida Palace, where Duma members were meeting in private conference, and blocked all the streets leading to it. Soldiers and armed workers were in occupation of the building. In this situation the Duma hastened to elect a Provisional Committee to “maintain order in Petrograd and for communication with various institutions and individuals”.
The Provisional Committee was composed of V. V. Shulgin and V. N. Lvov, both of the extreme Right, Octobrists S. I. Shidlovsky, I. I. Dmitryukov, M. V. Rodzyanko (chairman), Progressists V. A. Rzhevsky and A. I. Konovalov, Cadets P. N. Milyukov and N. V. Nekrasov, the Trudovik A. F. Kerensky, and the Menshevik N. S. Chkheidze.
 The composition of the C. C. Bureau in Russia on March 9 (22), 1917 was as follows: A. I. Yelizarova, K. S. Yeremeyev, V. N. Zalezhsky, P. A. Zalutsky, M. I. Kalinin, V. M. Molotov, M. S. Olminsky, A. M. Smirnov, Y. D. Stasova, M. I. Ulyanova, M. I. Khakharev, K. M. Shvedchikov, A. G. Shlyapnikov and K. I. Shutko. On March 12 (25), G. I. Bokii and M. K. Muranov were added, also J. V. Stalin, with voice but no vote.
The Petrograd Committee of the R.S.D.L P. was formed at a meeting on March 2 (15), 1917, and was composed of all those who had served on the illegal committees and newly co-opted members. The composition was: B. V. Avilov, N. K. Antipov, B. A. Zhemchuzhin, V. N. Zalezhsky, M. I. Kalinin, N. P. Komarov, L. M. Mikhailov, V. M. Molotov, K. Orlov, N. I. Podvoisky, P. I. Stu&chat;ka, V. V. Schmidt, K. I. Shutko and A. G. Shlyapnikov, representing the Central Committee Bureau.
For the January (Prague) Conference, to which Lenin refers, see Note No. 95.
 Reference is to the agreement concluded on the night following March 1 (14), 1917 between the Duma Provisional Committee and the Socialist-Revolutionary and Menshevik leaders of the Petrograd Soviet Executive Committee.The latter voluntarily surrendered power to the bourgeoisie and authorised the Duma Provisional Committee to form a Provisional Government of its own choice.
 Le Temps – a daily paper published in Paris from 1861 to 1942. Spoke for the ruling element and was the factual organ of the French Foreign Ministry.
 The Manifesto of the Executive Committee of the Soviet of Workers’ and Soldiers’ Deputies was published in Izvestia on March 3 (16), 1917 (No. 4),simultaneously with the announcement of the formation of a Provisional Government under Prince Lvov. Drawn up by the Socialist-Revolutionary and Menshevik members of the Executive Committee, it declared that the democratic forces would support the new government “to the extent that it carries out its undertakings and wages a determined struggle against the old regime”.
The Manifesto did not mention the fact that the Soviet had authorised Kerensky to join the new government, inasmuch as on March 1 (14) the Executive Committee had decided “not to delegate democratic representatives to the government”. Le Temps reported this in a despatch from its correspondent. On March 2 (15) the Soviet, “defying the protest of the minority”, approved Kerensky’s entry into the government as Minister of Justice.
 Neue Zürcher Zeitung – a bourgeois newspaper, founded in Zurich in 1780 and until 1821 published under the name Zürcher Zeitung, now the most influential paper in Switzerland.
National-Zeitung – a capitalist newspaper published in Berlin from 1848 to 1938; beginning with 1914 appeared under the name Acht-Uhr Abendsblatt. National-Zeitung.
 The foreign press reported the appointment by the Petrograd Soviet of a special body to keep check on the Provisional Government. On the basis of this report, Lenin at first welcomed the organisation of this control body, pointing out, however, that only experience would show whether it would live up to expectations. Actually, this so-called Contact Committee, appointed by the Executive on March 8 (21) to “influence” and “control” the work of the Provisional Government, only helped the latter exploit the prestige of the Soviet as a cover for its counter-revolutionary policy. The Contact Committee consisted of M. I. Skobelev, Y. M. Steklov, N. N. Sukhanov, V. N. Filippovsky, N. S. Chkheidze and, later, V. M. Chernov and I. G. Tsereteli. It helped keep the masses from active revolutionary struggle for the transfer of power to the Soviets. The committee was dissolved in April 1917, when its functions were taken over by the Petrograd Soviet Executive Committee Bureau.

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After the retirement of Prof. Roulet, research in Indoor Environment Quality and Health was discontinued at the LESO-PB. However, as a great specialist of the domain, Prof. C.-A. Roulet has produced a great wealth of scientific knowledge and developments which will serve as a reference for years to come.
The main purpose of buildings is to provide a comfortable living environment to their occupants. This includes, among others, thermal, visual and acoustic comfort as well as indoor air quality. Global warming is a strong incentive to save energy and to lower the impact of buildings on the environment.
Towards a sustainable development policy, the aim of the research performed in the IEQH group was to provide architects with valuable advice, methods and tools, helping them to design buildings that are comfortable and healthy, with a minimum use of energy and technical installations. Mathematical modelling and experimental validation was used to better understand phenomena that influence the indoor environment quality.
Roulet, C.-A., 2004, Santé et qualité de l’environnement intérieur dans les bâtiments: Lausanne, PPUR, 368 p.
Germano, M., C. Ghiaus, and C.-A. Roulet, 2005, Natural ventilation potential, in C. Ghiaus, and F. Allard, eds., Natural ventilation in urban context, London, James and James.
Ghiaus, C., and C.-A. Roulet, 2005, Strategies for natural ventilation, in C. Ghiaus, and F. Allard, eds., Natural ventilation in urban context, London, James and James.
Roulet, C.-A., 2005, The role of ventilation, in C. Ghiaus, and F. Allard, eds., Natural ventilation in urban context London, James and James.
Roulet, C.-A., 2001, Ventilation, in S. Burton, and M. Sala, eds., Energy Efficient Office Refurbishment: London, James James, p. 21-25.
Bluyssen, P. M., C. Cox, O. Seppänen, E. d. O. Fernandes, G. Clausen, B. Müller, and C.-A. Roulet, 2003, Why, when and how do HVAC-systems pollute the indoor environment and what to do about it? The European AIRLESS project.: Building and Environment, v. 38, p. 209-225.
Flourentzou, F., J. L. Genre, and C.-A. Roulet, 2002, TOBUS software – an interactive decision aid tool for building retrofit studies: Energy and Buildings, v. 34, p. 193-202.
Flourentzou, F., and C.-A. Roulet, 2002, Elaboration of retrofit scenarios: Energy and Buildings, v. 34, p. 185-192.
Germano, M., C. Ghiaus, C.-A. Roulet, and F. Allard, 2005, Natural Ventilation Potential of Urban Buildings: Int. J. of Ventilation, v. 4, p. 49-56.
Ghiaus, C., F. Allard, M. Santamouris, C. Georgakis, C.-A. Roulet, M. Germano, F. Tillenkamp, N.Heijmans, F. Nicol, E. Maldonado, M. Almeida, G. Guaracino, and L. Roche, 2005a, Natural Ventilation in Urban Areas – Results of the European Project URBVENT – Part 1: Urban Environment: Building and Environment.
Ghiaus, C., F. Allard, M. Santamouris, C. Georgakis, C.-A. Roulet, M. Germano, F. Tillenkamp, N.Heijmans, F. Nicol, E. Maldonado, M. Almeida, G. Guaracino, and L. Roche, 2005b, Natural Ventilation in Urban Areas – Results of the European Project URBVENT – Part 2: Natural ventilation potential: Submitted to Building and Environment.
Jaboyedoff, P., C.-A. Roulet, V. Dorer, A. Weber, and A. Pfeiffer, 2004, Energy in air-handling units–results of the AIRLESS European Project: Energy and Buildings, v. 36, p. 391-399.
Roulet, C.-A., 2001a, Indoor Environment Quality and Energy Use in Buildings: Energy and Buildings, v. 33, p. 183-191.
Roulet, C.-A., 2001b, Solar Energy and Global Heat Balance of a City: Solar Energy, v. 70, p. 255-261.
Roulet, C.-A., 2002, PrEN ISO 13790 – A Simplified Method to Assess the Annual Heating Energy Use in Buildings: ASHRAE trans., v. 108 pt 2, p. 911-918.
Roulet, C.-A., 2004, Le confort intégré: Bulletin de l’Association Suisse de Microtechnique, p. 25-31.
Roulet, C.-A., F. Flourentzou, H. H. Labben, M. Santamouris, I. Koronaki, E. Daskalaki, and V. Richalet, 2002a, ORME: A Multicriteria Rating Methodology for Buildings: Building andEnvironment, v. 37, p. 579-586.
Roulet, C.-A., and F. Foradini, 2002, Simple and Cheap Air Change Rate Measurement Using CO2 Concentration Decays: Int. J. of Ventilation, v. 1, p. 39.
Roulet, C.-A., F. D. Heidt, F. Foradini, and M.-C. Pibiri, 2001, Real heat recovery with air handling units: Energy and Buildings, v. 33, p. 495-502.
Roulet, C.-A., M.-C. Pibiri, R. Knutti, A. Pfeiffer, and A. Weber, 2002b, Effect of Chemical Composition on VOC Transfer Through Rotating Heat Exchangers: Energy and Buildings, v. 34, p. 799-807.
Roulet, C.-A., S. C. Sekhar, K. W. Tham, and K. W. Cheong, 2002c, Ventilation, indoor environment quality and climate – Comparison of European and Singapore office buildings: International journal of Ambient Energy, v. 23, p. 108-112.
Zuraimi, M. S., C. A. Roulet, K. W. Tham, S. C. Sekhar, K. W. David Cheong, N. H. Wong, and K. H. Lee, 2006, A comparative study of VOCs in Singapore and European office buildings: Building and Environment, v. 41, p. 316-329.
Courret, G., J.-P. Eggimann, C.-A. Roulet, O. Sari, and J. Thome, 2001, Plafonds froids rayonnants : simulations et mesures: CISBAT 01, p. 145-150.
Eggimann, J.-P., J. Thome, and C.-A. Roulet, 2001, Heat Transfer to Radiant Cooling Panels: CISBAT.
Flourentzos, F., J.-L. Genre, and C.-A. Roulet, 2001, EPIQR-TOBUS: A New Generation of Refurbishment Decision Aid Methods: CISBAT 2001, p. 155-157.
Flourentzou, F., G. Greuter, and C. A. Roulet, 2003, Hermione, une nouvelle méthode d’agrégation qualitative basée sur des règles.: 58èmes journées du groupe de Travail Européen Aide Multicritère à la Décision.
Flourentzou, F., and C.-A. Roulet, 2002, Multicriteria analysis of IEQ in sustainable buildings – Outline of a methodology: EPIC 2002 AIVC.
Foradini, F., C.-A. Roulet, and A. Oostra, 2005, HODA 2.0: a benchmark for rating buildings with regard to health, comfort and energy use, CLIMA 2005.
Johner, N., C.-A. Roulet, F. Foradini, and B. Oostra, 2005a, Sick Building Syndrome and building characteristics: Clima 2005, p. paper 332.
Johner, N., C.-A. Roulet, A. Oostra, L. A. Nicol, and F. Foradini, 2005b, Correlations between SBS, perceived comfort, energy use and other building characteristics in European office and residential buildings. : Indoor Air, p. Paper 1.6 43.
Maas, J. V. d., C.-A. Roulet, and F. Flourentzou, 2001, Measurement of Airtightness with the Stack Pressurisation Method – Application to Two Buildings.: CISBAT 2001, p. 187-192.
Maroni, M., P.Carrer, M. d. Torre, C. Aizlewood, E. O. Fernandes, C. A. Roulet, and C.Cox, 2005, Performance criteria for healthy and energy efficient buildings: definition, assessment and building classification: Indoor Air.
Pibiri, M.-C., and C.-A. Roulet, 2003a, Methods to study effects of essential oils on microbes present in ventilation systems.: CISBAT, p. 185-190.
Pibiri, M.-C., and C.-A. Roulet, 2003b, Study of the effect of essential oils on staphylococcus aureus and pseudomonas aeruginosa.: Healthy Buildings 2003, p. 715-720.
Pibiri, M.-C., C. Seigniez, and C.-A. Roulet, 2001, Assainissement microbiologique de l’air et des systèmes de ventilation au moyen d’huiles essentielles et leurs effets sur le bien-être des occupants: CISBAT 2001, p. 211-2016.
Roulet, C.-A., C. Cox, and F. Foradini, 2005a, Creating healthy and energy-efficient buildings: lessons learned from the HOPE project Indoor Air, p. Paper 1.6 44.
Roulet, C.-A., and F. Foradini, 2001a, Simple and Cheap Air Change Rate Measurement Using CO2 Concentration Decays: CISBAT 2001.
Roulet, C.-A., and F. Foradini, 2001b, Soft Air Conditioning In Storage Rooms: CLIMA 2000, p. 33-45.
Roulet, C.-A., F. Foradini, and E. Westphal, 2005b, RadiaConf: A design tool for locating and sizing radiant panels to improve comfort.: CISBAT 2005.
Roulet, C.-A., M. Germano, F. Allard, and C. Ghiaus, 2002, Potential for Natural Ventilation in Urban Context: An Assessment Method: Indoor Air, p. 830-836.
Roulet, C.-A., F.-D. Heidt, M.-C. Pibiri, and F. Foradini, 2001a, Rendement réel de la récupération de chaleur dans les installations de ventilation des bâtiments: CIFQ 2001 – Vème Colloque Interuniversitaire Franco-Québecois – Thermique des Systèmes, p. 423-430.
Roulet, C.-A., P. Jaboyedoff, V. Dorer, A. Weber, A. Pfeiffer, and B. P. M., 2001b, Pollution and Energy in Air Handling Units – Some Results of the AIRLESS European Project: CISBAT, p. 127-132.
Roulet, C.-A., N. Johner, F. Flourentzou, and F. Foradini, 2005c, Multi-criteria analysis of health, comfort and energy-efficiency of buildings Indoor Air, p. Paper 1.7 41.
Roulet, C.-A., B. Oostra, F. Foradini, and C. Cox, 2005d, Designing healthy, comfortable and energy-efficient buildings: lessons from enquiries within the european HOPE project.: CISBAT 2005.
Roulet, C.-A., M.-C. Pibiri, and F. Foradini, 2001c, Diagnostic des installations de ventilation – Méthodes et quelques résultats: CIFQ 2001 – Vème Colloque Interuniversitaire Franco-Québecois – Thermique des Systèmes, p. 5-13.
Roulet, C.-A., M.-C. Pibiri, R. Knutti, A. Pfeiffer, and A. Weber, 2001d, Effect of Chemical Composition on Voc Transfer Through Rotating Heat Exchangers: CLIMA 2000, p. 73-87.
Roulet, C.-A., S. C. Sekhar, T. K. W, and K. W. Cheong, 2001e, Ventilation, Indoor Environment Quality and Climate – Comparison of European and Singapore Office Buildings.: CISBAT 2001, p. 139-144.
Roulet, C.-A., and M. S. Zuraimi, 2003, Applying Tracer Gas Technique for Measurements in Air Handling Units with Large Recirculation Ratio: Healthy Buildings 2003, p. 536-541.
Roulet, C.-A., M. S. Zuraimi, and S. C. Sekhar, 2003c, Tracer Gas Measurement of Airflow Rates in Rooms With Several Air-Handling Units: Healthy Buildings 2003, p. 398-403.
Zuraimi, M. S., C.-A. Roulet, S. C. Sekhar, K. W. Tham, K. W.Cheong, N. H. Wong, and H. K. Lee, 2003, Concentrations and Emission Rates of Indoor VOCs – a comparative study between Singapore and European Office Buildings.: Healthy Buildings 2003, p. 385-390.
See also The International Journal of Ventilation open access edition.

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