Court of Appeals Rules The Court’s Evidentiary Gatekeeping Role Applies to Evidence Presented to Support a Request for an Emotional Support Animal
On September 17, 2020, the Michigan Court of Appeals, in Riverbrook v Abimbola Fabode and All Other Occupants, ___ Mich App ___ (2020) (Docket No. 349065), issued a unanimous decision finding that the district and circuit courts “abandoned their roles as the gatekeepers of evidence under MRE 702” in rejecting a landlord’s attempt to challenge the validity of documents presented by a tenant in support of his request for an accommodation permitting him to have an Emotional Support Animal (“ESA”). As a result, Associations who are determining whether to extend reasonable accommodations permitting ESAs should know that they can ask for reliable disability-related information under certain circumstances.
Defendant, Antony Fabode (“Mr. Fabode”), lives in property owned by Riverbrook, a mobile home association, and leased to his sister, Defendant Abimbola Fabode (“Abimbola”). Mr. Fabode obtained a puppy, which Riverbrook believed may be a Pitbull mix, a forbidden breed in the community. Riverbrook informed Abimbola of the alleged violation and ordered her to remove the dog from the premises. Mr. Fabode responded, sending in veterinary records disputing the puppy’s breed, and a “USAR” certificate that declared the puppy an “emotional support dog.” Riverbrook was not satisfied and issued a demand for Abimbola and Mr. Fabode to vacate the residence.
In response to Riverbrook’s demand for possession, Mr. Fabode submitted a letter from Anne Venet (“Venet”), a limited license professional counselor, declaring Mr. Fabode’s need for an ESA. Riverbrook was “skeptical” of the letter and requested that Venet complete a “resident disability certification form” which she did, providing “general answers when asked how an ESA could assist [Mr. Fabode].”
In the eviction proceedings that were coinciding with the requests for further documentation about Mr. Fabode’s need for an ESA, Riverbrook continued to challenge the validity of Venet’s letter, while Mr. Fabode and Abimbola asserted they were legally entitled to possess the puppy as an ESA and that Riverbrook wrongfully evicted them.
Venet testified at the district court hearing, asserting that she determined that Mr. Fabode needed an ESA after a single, brief phone call. Venet admitted she reviewed no prior medical records, conducted no diagnostic testing, and provided no counseling to Mr. Fabode. Venet also asserted that Mr. Fabode was referred to her through United Support Animals.
The district court, over the objection of Riverbrook, limited the questioning of Venet: “the statute is pretty clear[:] counselor [sic] writes a letter, makes a determination.” Riverbrook continued to protest that the letter from the counselor needs to be “credible” and that therefore the court should review Venet’s letter more deeply, but the district court declined to do so, and denied the writ of eviction.
Riverbrook appealed to the circuit court after investigating “USAR” and discovering that the acronym was a reference to “U.S. Support Animals,” and finding that their website “promise[d] a doctor’s letter to support an applicant’s request for an ESA for $179.99.” Riverbrook argued at the circuit court that Mr. Fabode bought the letter documenting his need for an ESA only after Riverbrook notified him that he violated the pet policy, and that the letter failed to appropriately support his need for an ESA.
The circuit court, citing caselaw that allegedly held that an inquiry under the Fair Housing Act need not be “highly intrusive” and that “medical records or detailed information about the nature of a person’s disability is not necessary,” found that Venet’s letter was sufficient evidence to document Mr. Fabode’s need for an ESA.
The issue here boils down to whether Venet’s letter and the ESA certification are sufficient evidence to prove that Mr. Fabode had a “handicap” that required accommodation “to use and enjoy his dwelling” because of the handicap.
The Court of Appeals began its analysis by discussing the requirements of a Fair Housing Act claim, which Mr. Fabode and Abimbola asserted in defense to the eviction action. The panel reiterated that the proponents of the FHA defense (Mr. Fabode and Abimbola) bore the burden of proving that Mr. Fabode had a “handicap” and required an accommodation “to use and enjoy his dwelling” because of the handicap.
The panel held that “[c]ontrary to the district court’s conclusion, the court was required to consider the validity of the opinion presented in the letter to determine if the letter actually supported [Mr. Fabode’s] claim” (emphasis added). The panel explained that Michigan Rule of Evidence (MRE) 702 governs the admissibility of expert testimony and opinions, like that of Venet’s testimony and opinion.
The panel explained that the caselaw the circuit court relied on did not support its proposition. Instead, as the panel explained, caselaw stated that “a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the [FHA’s] definition of disability . . . , (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation” (emphasis in original)
The panel noted that Riverbrook conformed to this guidance when it asked Mr. Fabode for further documentation via the “resident disability certification form.” And the panel noted that Venet’s letter did not answer the questions Riverbrook was, and is, entitled to ask.
The panel concluded that further proceedings must take place to resolve the case and noted that “the district and circuit courts should take careful note of the statutory language. 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.” In fact, the panel explained, “[u]nder MRE 702, the court must carefully consider the reliability of the methods employed by [the counselor] and well as [his or] her final opinion.”
What Does This Mean for Associations Reviewing Requests for ESAs?
The Michigan Court of Appeals relied on the Sixth Circuit’s decision in Overlook Mut Homes v Spencer, 415 Fed Appx 617, 621 (CA 6, 2011), which in turn cited a Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 14, 2004), available at https://www.hud.gov/sites/documents/huddojstatement.pdf to find that the district and circuit courts erred in analyzing the evidence presented by Mr. Fabode in support of his need for an ESA.
The Joint Statement of the Department of Housing and Urban Development and the Department of Justice provides that a housing provider, in this case an Association, is empowered to request some information about the request for a reasonable accommodation to keep an ESA. For example:
- If a person with an obvious or known disability is requesting an accommodation, the Association “may request only information that is necessary to evaluate the disability-related need for the accommodation.”
- If the person requesting an accommodation does not have an obvious or known disability, the Association may request “reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’s disabilities and the need for the requested accommodation.”
The Riverbrook decision underscores the Joint Statement’s authorization that an Association my request reliable disability-related information in reviewing a reasonable accommodation under the Fair Housing Act. The decision also ties the concept of reliability to a court’s gatekeeping function relating to evidence under MRE 702. Accordingly, Associations who are determining whether to extend reasonable accommodations permitting ESAs should know they can ask for reliable disability-related information at times.
Katherine R. Hopkins is an attorney with Hirzel Law, PLC and focuses her practice in the areas of appellate law, community association law, and civil litigation. Ms. Hopkins received her Bachelor of Arts degree in English (with a minor in Psychology), and a Teaching Certificate from Michigan State University. Prior to attending law school, Ms. Hopkins was a high school English teacher in Metro-Detroit. Ms. Hopkins obtained her Juris Doctor degree from The University of Michigan Law School, where she was a note editor for the Journal of Law Reform. Prior to joining Hirzel Law, PLC, Ms. Hopkins clerked for Chief Justice Pro Tem David Viviano on the Michigan Supreme Court for two terms, and was an Attorney in the Research Division of the Michigan Court of Appeals. She can be reached at (248) 478-1800 or [email protected].