A Stitch in Haste

I've heard of watchdogs, but "alarm clock dogs"?

All Joyce Grad wanted from her Royal Oak cooperative apartment board was a waiver of its no-pet policy so she could buy a dog to help her cope with debilitating depression. What she got instead was a cold rejection.

But last week, a federal court jury in Detroit sided with the 55-year-old disabled registered nurse in a decision that could solidify the right of mentally ill people to obtain exceptions to no-pet policies in apartment, condominium and cooperative housing complexes.

The verdict, which awarded $14,209 in actual damages and $300,000 in punitive damages to Grad, is believed to be the first federal jury verdict to recognize mental illness as a disability under the federal Fair Housing Act.
...
Grad said Tuesday that Lady, through relentless pestering, forces her to get out of bed in the morning, demands to be fed and taken for walks, and helps her to snap back to reality when depression or a panic attack sets in.
...
"When I don't want to get up in morning, she gets in my face with her cold wet nose and is unrelenting until I get up," Grad said. "I've trained her that if I don't get up by 7, she is to go to door and bark until help arrives."

Quite a noble dog, to be sure, but what about the law and the verdict?

Mandates regarding handicapped accessibility are a potentially thorny issue for libertarians. On the one hand, more extreme libertarians might reflexively invoke the supremacy of property rights (e.g., "The government shouldn't be able to tell me to make my restaurant handicapped-accessible any more than it should be able to tell me to make it non-smoking."). Others might concede that government buildings should be handicapped-accessible out of a sense of fairness and equity to disabled citizens. Yet another approach might be to argue for a social contract exemption (i.e., those not fully able to participate in the social contract should be exempt from it to the extent of their disability).

The buzzword in the law of the handicapped (e.g., the Americans with Disabilities Act) is usually "reasonable accommodation." The Fair Housing Act provision at issue with the alarm clock dog invokes that same term. It's a compromise doctrine, between the two extremes of no obligation and unlimited obligation. And, if applied properly, it probably makes sense.

But this fact pattern strikes me as different. We typically think of reasonable accommodation questions as being strictly between the disabled individual seeking accommodation and the party asked to provide it (e.g., a property owner). But here another group is being asked to make a "reasonable accommodation" -- Grad's neighbors.

Having a dog in a no-pet complex is one thing; a dog specifically trained to bark non-stop at 7:00am would likely represent quite extreme negative externalities (especially to people like me, who don't need to get up until 7:20am).

Does reasonable accommodation extend to third-parties, such as neighbors? Here's another example, one in which I am admittedly somewhat cold-hearted. Every public bus in New York City is handicapped accessible -- the rear door can be used as a wheelchair lift. Now besides the fact that this apparatus is expensive in and of itself, it also requires the driver to stop the bus, get out of his seat, go to the back of the bus, activate the lift, secure the disabled rider, disable the lift, return to his seat and do the same thing in reverse when the passenger wants to get off. That takes quite a bit of extra time, that slows down the bus and lengthens the trip for every other passenger. All that lost time adds up to quite a hefty "accommodation," one that I personally do not consider "reasonable." Wouldn't it just be easier (i.e., more "reasonable" an "accommodation") to simply provide shuttle buses for the wheelchair-bound and not have them ride regular buses in the first place? (I acknowledge that there are also issues of dignity involved here -- I'm just doing the cold, impersonal math.)

It's one thing to compel two parties in a contract or other interaction to adhere to certain rules and limits, including mandatory reasonable accommodation for the disabled. But it's another issue entirely, one that I think crosses the line, to impose negative externalities on uninvolved third parties, including Ms. Grad's neighbors. The case was wrongly decided and should be reversed on appeal.

In conclusion, let me add two tangential hasty stitches:

1. The punitive-to-compensatory ratio runs afoul of the "ten times" rule safe harbor guideline dictum, whatever the heck it is, of State Farm Mutual Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003). In that case, the Supreme Court held that a punitive-to-compensatory ratio greater than ten is, while not per se unconstitutional, subject to some form of heightened scrutiny. The lower courts are still trying to develop a body of case law around the relatively new State Farm holding. But at the very least, the defendants in this case would seem to have grounds to appeal simply based on the level of punitives.

2. Readers especially interested in handicapped rights law should note the pending Supreme Court case, Spector v. Norwegian Cruise Line, an ADA dispute about what reasonable accommodation for the disabled is owed by foreign cruise ships in U.S. waters. The firm behind SCOTUSblog represents the petitioners -- check out their latest post or here.

Hat tip to Overlawyered.

For Discussion: Any libertarians out there brave enough to argue against the ADA in its entirety?

FUN FACT: President George H.W. Bush described the ADA as his "greatest domestic accomplishment."

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