MSC Asks: Was Expert Mistakenly Required In Reasonable Accommodation Case?
The Michigan Supreme Court is currently considering a case involving the denial of a residential tenant’s request for a “reasonable accommodation” - that is, the tenant wanted to keep an emotional support dog on the premises to help him with his alleged disability.
The tenants in Riverbrook v Fabode (MSC Docket No. 162330) were Abimbola and Antony Fabode, who were brother and sister. Antony claimed to suffer from “differential illness” and he owned a dog named King. He asserted that King was a Labrador Retriever mix and was certified as his emotional support animal (ESA). The landlord, however, suspected that King was actually a Pitbull mix, which was a forbidden breed on the premises. The landlord denied the Fabodes’ request to keep King as an ESA and sought a writ of eviction. The Macomb County trial courts denied the landlord’s request for a writ of eviction.
On appeal, the Michigan Court of Appeals disagreed (COA Docket No. 349065). “In this case, the district and circuit courts abandoned their roles as the gatekeepers of evidence under [Michigan Rule of Evidence] 702 and rejected the landlord’s attempt to challenge the validity of the documents presented by the tenant to support his need for an ESA,” the Court of Appeals said in a published opinion that vacated the trial court rulings. “This was error.”
The Fabodes appealed to the Michigan Supreme Court. In a recent order, the high court directed that oral arguments be scheduled in the case. Specifically, the Michigan Supreme Court instructed the Fabodes to address whether the Court of Appeals:
improperly adopted an expert witness requirement for reasonable accommodation requests.
properly characterized the professional counselor in the case as an expert witness and correctly remanded for consideration of her testimony under Michigan Rule of Evidence (MRE) 702.
Background
Antony’s request to keep his dog, King, on the premises as an ESA was supported by veterinary records and a USAR certificate. A letter was also presented to the landlord from Anne Venet, a limited licensed professional counselor. The letter set forth Antony’s purported need for an ESA.
The landlord denied the Fabodes’ request for the accommodation, suspecting the dog was really a Pitbull mix (a forbidden breed on the premises) and not a Labrador Retriever mix, as was claimed by the Fabodes. The landlord was also skeptical of the authenticity of the “form letter” and the registration certificate that the Fabodes presented. As a result, the landlord sought a writ of eviction in a Macomb County district court.
In response, the Fabodes alleged the landlord violated the Fair Housing Act (FHA), 42 USC §3601 et seq., by denying their accommodation request. The FHA says that a landlord may not discriminate “because of a handicap” by “refus[ing] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” A “handicap” or “disability” for purposes of the FHA is defined as “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such impairment, or (3) being regarded as having such an impairment.” The statute defines “major life activities” as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”
Venet testified in district court that she determined the need for Antony’s ESA after a phone call. The district court also limited the landlord’s questioning of Venet. The district court denied the writ of eviction.
The landlord appealed to the circuit court, claiming that Antony “bought” his diagnosis on a website that promised a “doctor’s letter” to support a request for an ESA. The landlord also asserted that Venet’s letter was insufficient to establish there was a disability-related need for an ESA.
Relying on Overlook Mutual Homes v Spencer, 415 Fed App’x 617 (CA 6, 2011), the Macomb County Circuit Court said that “medical records or detailed information about the nature of a person’s disability is not necessary” to establish the need for an ESA. The circuit court concluded that Venet’s opinion was sufficient because there was no legal requirement for “more stringent proof of a handicap or the necessity of an accommodation.” Accordingly, the circuit court denied the landlord’s request for a writ of eviction.
The landlord appealed.
COA Decision
The Court of Appeals decided the case in September 2020. At the outset of its opinion, the appeals court said:
“Humans have long enjoyed the companionship of domesticated animals. In recent years, governments have allowed citizens with certain psychological disabilities to register ‘Emotional Support Animals’ (ESAs) to help them navigate the world. This designation is more fluid than that of a service dog used to assist the blind, or others with obvious needs. And the fuzzy edges of these laws have spawned abuse. We have all heard the tales: a woman claiming a disability who tried to bring an emotional support peacock in the main cabin on a flight, or the United States Department of Transportation requiring airlines to permit emotional support mini horses on passenger airliners. Landlords have also felt the fallout from ‘emotional support animal’ abuses, with tenants purchasing ESA certification online to dodge pet prohibitions in their leases.”
The Court of Appeals then turned to the facts of the case, noting the Fabodes had the burden of showing that Antony has a “handicap” and that he required the accommodation “to use and enjoy” his dwelling. “The only evidence presented by the Fabodes was the letter authored by Venet,” the appeals court said. “Venet took the stand but provided no new evidence in the courtroom. Contrary to the district court’s conclusion, the court was required to consider the validity of the opinion presented in the letter and determine if the letter actually supported the Fabodes’ claim.”
Next, the Court of Appeals explained that MRE 702 governed the admissibility Venet’s expert testimony and opinion. MRE 702 says: “If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
According to the Court of Appeals, the trial court improperly relied on Overlook to “avoid its duty of overseeing the validity and reliability of the evidence presented. … Overlook does not support the proposition asserted.” The appeals court pointed out the landlord had asked the Fabodes “for reliable information from which it could determine whether Antony truly suffered from a handicap and required an ESA to allow him to use and enjoy his dwelling.” The Fabodes responded “with the letter from Venet stating that Antony suffered from ‘differential illness.’ The letter did not identify any of the symptoms of Antony’s ‘differential illness.’ The record is devoid of any information describing Antony’s purported handicap or disability. Did he suffer from anxiety or depression? Was he prone to psychotic episodes? The letter offers no explanation of how King could assist Antony. Does King calm Antony? Does King sense when Antony might experience an episode of his condition?”
Because the trial courts did not allow the record to be fully developed, “this Court can[not] assess whether Antony has a handicap and requires a reasonable accommodation by Riverbrook of its pet policy to allow King to live in the home and assist his owner,” the Court of Appeals said.
“On remand, the district and circuit courts should take careful note of the statutory language,” the Court of Appeals wrote. “The statute does not provide that a tenant may automatically establish a handicap and a need for an ESA with a simple letter or that the court may not delve into the accuracy or legitimacy of the diagnosing party’s opinion. Under MRE 702, the court must carefully consider the reliability of the methods employed by Venet, as well as her final opinion. Only then can the district and circuit courts determine if Riverbrook refused to make a reasonable accommodation for a tenant with a disability or handicap.”
