Obvious Injustice

Mary Jo. C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013)

Why This Is Not a Law Review Article

You see — maybe you don’t — I write law review articles. I’ve written five so far, plus a couple of journal articles here and there, from when I was working in academia. I’m not going to bore you here in the opening paragraphs about what they are all about, because that’s exactly what would happen.

Two things you need to understand first. The first is that law review articles are exercises in vanity, and vanity is a sin. The only people on God’s green earth who need to write law review articles are legal academics who are trying to pad their respective curricula vitae. I was never a legal academic. I wrote the first law review article for the journal where I clerked in law school because they sent out a call for articles and I thought it would help my career. After that it was just vanity. I wrote the last article after I quit my last legal job; I was an overage grad student at Rutgers on an independent study project and I had to write a paper; why not try to get it published?

But that doesn’t mean that it was a good idea for me to write yet another law review article. To put it bluntly, you don’t get paid to write law review articles. They’re difficult to write, and the footnoting is hell. Not to mention that I’m not working as a lawyer anymore, and nobody I know is going to be impressed if I write any more law review articles. It’s a pointless, painful exercise at this point in my career.

And yet…

Okay. I’m doubling down on the vanity thing here. The second thing you need to understand is that the articles I’ve published have been in, um, well, not the top tier of law reviews. Like, y’know, the North Dakota Law Review. There is not one thing wrong with the North Dakota Law Review, and I am proud to have published there, but it ain’t Harvard. Not that I am shooting for Harvard, you understand. I would just love to have something in the Texas Law Review, just once. Or the Baylor Law Review. It would… mean something for me. (I don’t expect you to understand, why would you?)

I just figured I could write one more, a good article, a big article, and maybe I could get it published someplace with a big nationwide reputation. And I had an idea of what to write about. There was a case I’d read, years ago, which was what I thought of as a good case. Mary Jo C. was a very pro-plaintiff Americans with Disabilities Act case, out of the Second Circuit. There aren’t that many pro-plaintiff ADA cases. And the case had been published years ago; I figured there were a lot of cases since that had cited it, and I could spend many happy hours reading them and seeing how the other federal courts and state courts had dealt with the issues in that case.

I want to say it was September 2020 when I started thinking about turning the Mary Jo C. case into a law review article. I had just gotten a new job, and so didn’t have to spend every evening and weekend scouring the job sites. I was locked down, so I had the time, and I needed a new project. I logged on to my Rutgers alumni account and accessed the Westlaw online legal database. And… come to find out that the free Westlaw access I had when I was a grad student was no longer available. Blast and damnation. I could access Westlaw, but I had to access it from the Rutgers wireless network, and that meant I had to schlep to campus, and that wasn’t happening. (I am not the sort of person who is going to pay for Westlaw access to write an article for which I am not ever going to see so much as one thin dime, so that was out.)

So I set the idea aside for the time being — and used my free time to write a novel, as it happened — and didn’t come back to the idea until March 2022. By that time I’d already gone through COVID-19, so I wasn’t worried about catching anything. It was a fine sunny Saturday. My wife had taken our daughters to see her hairstylist in South Jersey. I had a free day and had nothing better to do than to schlep over to New Brunswick and download what was probably a hundred or so law cases from the last few years. Why not?

I didn’t do it. I took a nap instead.

It wasn’t too much longer before I decided maybe the best way to approach the Mary Jo C. decision was by easy stages. I re-read the Second Circuit case. I took a closer look at the lower-court decision. And I realized that when I’d looked at the case before, I’d just looked at the holding. I hadn’t taken a good look at the reasoning. I hadn’t really taken a good look at the process.

What I realized is that what was going on in Mary Jo. C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013) wasn’t just your average ADA Title II case. I realized that this was a case that implicated deeper policy questions about the role of people with disabilities in society, the ongoing stigma of mental illness, and the way that society understands basic issues of fairness and justice. It was too good a story to be turned into a boring, flat law review article that would sit for generations on dusty law library shelves.

All I had to do was figure out how to tell it.

The Remedying of this Situation

Exterior of Kingsboro Psychiatric Hospital, Brooklyn, New York
Kingsboro Psychiatric Hospital, Brooklyn, New York

I don’t know if you’ve ever been to a psychiatric hospital. Probably you haven’t. I have been lucky enough that every time I’ve walked into a psychiatric hospital, I was able to leave and go home. When I was working as a lawyer, I had several clients who were in different psychiatric hospitals — Ancora in South Jersey, Trenton across town from my office, Greystone up in Morris County. Spend a couple of hours in one of those places, and when you walk out, the world turns back into Technicolor. The air smells sweeter, the sky is blue again.

Let me put it another way. There aren’t many large state psychiatric hospitals left, but there are still some, and they’re hard places. They’re oppressive. They can be dangerous. They’re intimidating. And what maybe you don’t realize is that they’re also difficult places to work.

C.S. Lewis once wrote, talking about evil, that in the Managerial Age, the greatest evil is done “in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices.” If you work in this kind of office — I do myself — imagine walking out a perfectly reasonable office door and stepping into a literal madhouse. The offices at Greystone are like that; you’re not ever more than ten feet away (and a locked door) from someone with mental illness so serious that they can’t care for themselves. The contrast is… jarring isn’t the word for it. And the white-collar staff, you understand, sits in their quiet little cubicles, and all the time, right on the other side of the wall, is the modern-day Bedlam.

Well, Louis Callace wasn’t a white-collar anything. He worked at Kingsboro Psychiatric Hospital in Brooklyn for twelve years until he was fired in February 1984. (Kingsboro is still open for business as of 2022.) Callace was an assistant cook when he was fired. Twelve years as an assistant cook in a psychiatric hospital is not anyone’s idea of an easy job. It’s perhaps not entirely surprising that he developed symptoms of mental illness himself.

The one good thing about working twelve years as an assistant cook at a New York state psychiatric hospital is that you’re eligible for state disability retirement benefits. There was just one catch. The rule at that time — the same rule that’s still in force, and would play a big role in the Mary Jo C. case — was that you had to file for disability retirement benefits within ninety days of your last day of work. Louis Callace didn’t do that. He didn’t get around to filing until March 1985, more than a year after he was fired. The State of New York, in its august majesty, wasn’t in the mood to cut Callace a break. They denied his application for disability retirement benefits. Callace filed for a fair hearing, claiming that his mental illness kept him from filing on time. He lost, and appealed through the New York state court system.

The case was assigned to an appellate judge named Norman Harvey. The official bio says that Judge Harvey was an Air Force veteran who completed 74 missions over German-held territory. If you know anything about the air war in Europe, 74 missions is just an unGodly amount of missions. So we’re talking about someone who was a very brave and tough individual, someone who had seen a hell of a lot in their lives.

I want to just highlight the last paragraph of the decision here:

While the result of this case is an obvious injustice, particularly in light of petitioner’s 12 years of service and the uncontradicted psychiatric testimony, it is clear that Retirement and Social Security Law § 62 does not provide a waiver provision similar to the Federal statute. Nor has petitioner pointed to any authority which would allow the Comptroller or this court to carve out such a waiver. Accordingly, the remedying of this situation rests with the Legislature.

You caught that first part of that first sentence, right?

Okay, so imagine you’re Louis Callace, struggling with mental illness, about to lose his one source of income for the rest of his life, and you hear the judge say, “While the result of this case is an obvious injustice.” Hell, imagine you’re you. Doesn’t matter what kind of case it is. The judge is up there, in his black robes, and he’s telling you that you lost, and that it’s an obvious injustice, sorry, go bother those folks over there in Albany and get them to change the law.

What the hell do you do with that? And how do we accept that as a society?

What We Talk About When We Talk About Justice

I don’t want to shock you or anything here, but there is a very good argument that the American judiciary is not really about what we think of as justice.

I mean, you’d think so. The person who is nominally in charge of the whole thing from an administrative point of view is known as the Chief Justice. The other nine appointees to the Supreme Court are Associate Justices. There is a whole agency in the federal government called the Department of Justice. You kind of get the idea that what the entire process is there for is, you know, justice. But that’s not quite correct.

The leading modern philosopher on justice is the late John Rawls, Harvard professor and author. Rawls developed a theory he called perfect procedural justice, which basically means that in a perfect world, you set up procedural systems that always reach the right outcome. Rawls illustrates as follows, in A Theory of Justice:

Toillustrate the former, consider the simplest case of fair division. A number of men are to divide a cake, assuming that the fair division is an equal done, what procedure, if any, will give this outcome? Technicalities aside, the obvious solution is to have one man divide the cake and get the last piece, the others being allowed their pick before him. He will divide the cake equally, since in this way he assures for himself the largest share possible.

There is, I submit, a reason why Rawls picked this example, because there are not a lot of other examples of perfect procedural justice in this sad old world. Case in point; I have twin teenage daughters who are well-provided for in every conventional sense, so they spend their days racking their brains to prove that some element of their lives is unfair. The most common complaint is that they have to share a bathroom, and — oh, the horror — this means that one of them has to take a shower first in the evening, while the other gets to laze around and read for ten extra minutes. In order to deal with this horrifying injustice, we have determined that one child will take her shower first on odd-numbered days, and the other child will take her shower first on even-number days. Perfect procedural justice? Oh, no. Not on six days out of the year, where the odd-numbered child must take her shower first on the thirty-first of the month and then the first. (Our response to this has been as follows: shut up and get in the shower, kid.) Perfect procedural justice is only going to be found in the rare situations where there’s a simple rule that everyone understands that can’t be misapplied.

So besides perfect procedural justice, Rawls identified imperfect procedural justice (which is what we get most of the time, more about this in a minute) and pure procedural justice, which is what you get when everyone agrees that there’s a fair procedure, even when the procedure guarantees that you never get a just result. (I think this is where Rawls goes off the rails a bit.) Pure procedural justice is like the old rule in the NFL that the winner of the coin toss in overtime got the ball first; it wasn’t generally seen as fair in an overtime game between the Saints and Vikings that if the Saints won the toss, and scored, that it was the end of the game. Pure procedural justice doesn’t have to be fair; it just has to use a fair process to achieve some kind of result.

Rawls uses the specific example of a criminal trial to illustrate imperfect procedural justice, and this is the point I am trying to make here. What the justice system in America is trying to do is to try to get the procedure as fair as possible, and if that happens, you’re more likely to get a just outcome.

Graphic showing the four elements of procedural justice: voice (all are given a chance to tell their side of the story), trustworthiness (decision makers convey trustworthy motives), respect (all are treated with respect and dignity), and neutrality (decisions are unbiased and guided by transparent reasoning)
This illustration is from a Yale Law School website about procedural justice; the site doesn’t mention John Rawls, which is pure anti-Harvard bias on the part of the Yalies, don’t let anyone tell you any different. (I went to Baylor and don’t really have a dog in this fight, just sayin’.)

Legal scholars have expanded the concept of imperfect procedural justice (which Rawls gives short shrift to) to include the concepts in the illustration above. Taking these concepts and applying them to the Callace decision: Was he treated with respect? I suppose so, hard to say. Can we trust Judge Harvey to make a fair decision? Sure. Was Callace given a voice? Yes. Was the decision neutral? No doubt. (A biased judge would have tossed out the law and given the decision to Callace, rules be damned.) There isn’t a procedural flaw in the Callace case that I can see. But the result was an obvious injustice; even the judge said so. (More about this a little later.)

The point of the justice system is not — despite its name — to provide justice, but to make sure that the procedures are fair, in the hopes that imperfect procedural justice will occur. Justice and procedural justice are very different things, as Louis Callace could tell you. The difficulty in looking at the Callace case as an example of imperfect procedural justice is that the problem with this case is not that the procedure is either fair or unfair, but that the law was unfair — and as Judge Harvey rightly pointed out, it’s not the job of the justice system to fix unfair laws. And in fact, the New York law that doesn’t allow for any exceptions to the rule that you have to file for disability retirement benefits within ninety days hasn’t changed. It’s still on the books. What did change was the passage of the Americans with Disabilities Act in 1990 — five years too late to help Louis Callace, who never got his disability retirement benefits.

I wanted to reach out to Louis Callace, if I could, to get his opinion on the case. Unfortunately, he died on September 11, 2001. (In Orlando, of natural causes — just a coincidence.)

A Question of Stigma

Entrance to Central Islip Public Library, Long Island
Central Islip Public Library, Islip, New York

We don’t know a lot about who Mary Jo C. was, and that is by design. She was a librarian, working in central Long Island. She had experienced mental illness since she was a teenager. She worked as a librarian from 1986 until she was fired in November 2006. During this time, she moved around to several different After she was fired from Central Islip Public Library, Mary Jo C. approached a legal clinic at Touro Law School for representation, and was accepted.

The lawyer representing Mary Jo C. from Touro was William Brooks, and he made two decisions early on in the case. First, he redacted the plaintiff’s last name in the complaint. Second, he did not identify the specific mental illness that she experienced, and did not provide any details about whatever behaviors that she may have experienced that led to her being fired. (This was a mistake, as we’ll see.) The purpose of this was to protect the plaintiff’s privacy, but was also, in my view, done to mitigate the societal stigma against mental illness.

The problem with not providing this information, from my (admittedly selfish) position, is that it leaves a lot of room for speculation. My best guess here is that Mary Jo C. might have had schizophrenia, and that she was at some point institutionalized. But I don’t know that, and frankly it’s inappropriate for me to even guess.

Whatever the real reason might have been, the facts are that Mary Jo C. missed two important deadlines. The first was the same deadline that Louis Callace missed; Mary Jo C. also failed to file for her disability retirement benefit within the 90–day window after she was fired. The second was the 180-day filing deadline for filing a disability employment discrimination case with the Equal Opportunity Employment Commission.

This led Brooks to include two causes of action in the complaint. First, the complaint named the New York State and Local Retirement System, alleging that the ADA required the state to modify the 90-day rule to allow Mary Jo C. to file after the deadline. Second, the Central Islip Public Library was included in the complaint for employment discrimination under Title II of the ADA. This was ultimately unsuccessful (and is the holding for which the Mary Jo C. case is most well known for); both the lower court and the Second Circuit would go on to rule that you can’t sue for employment discrimination under Title II (the part of the ADA requiring state and local governments to not discriminate), you can only sue under Title I (the part of the ADA that prohibits most employment discrimination on the basis of disability). Got it? Okay, won’t bring that part of it up again.

The first filing by the defense in this case was a motion to dismiss. This is a standard part of pretty much every civil case in the US. The motion to dismiss is for cases where the plaintiff has, according to the defendant, failed “to state a claim upon which relief can be granted.” It works like this: the defendant is essentially saying, “Even if everything the plaintiff says is true, the plaintiff still can’t win.”

One of the first things you learn in law school is that the jury decides the facts of the case, and the judge decides the law of the case. The motion to dismiss is the perfect example of how this works. The motion to dismiss presupposes that everything the plaintiff says is correct. The plaintiff doesn’t have to prove that the facts stated in the complaint are correct at this stage; that would be for a jury to determine if the case ever gets that far. What the defendant has to show is that, if we pretend for the moment that everything the plaintiff says is true — even if the plaintiff is wrong, mistaken, or lying — that the plaintiff can’t win as a matter of law. And because that’s a judicial decision, the motion to dismiss means that the judge decides the outcome of the case before it ever gets to a jury.

The judge in this case, by the way, was Sandra Feuerstein, a George W. Bush appointee who held the unique distinction of being a judge and also having her mother be a judge. She filed her opinion on May 11, 2011. The first stage of the analysis — which is a very common issue in ADA cases across the board — was whether Mary Jo C. had a disability.

I mean, if you are just a normal person sitting out there, reading this on your phone instead of playing Ticket to Ride or something, you might think, “Well, this is someone who has had mental illness for years, and supposedly got fired for it, you’d think she had a disability, why are they litigating this?” A good question. First part of the answer: the plaintiff’s disability always gets litigated. Unlike most other federal civil rights laws, the ADA only applies if you can show you have a disability. Showing that the plaintiff doesn’t have a disability is a quick and easy slam-dunk win for defendants. Second, the ADA definition of disability is tricky anyway — and it’s even trickier if you have a mental illness.

Under the ADA, you have to show that you have an impairment that substantially limits a major life activity. Brooks, in trying to limit the information about Mary Jo C.’s disability, just asserted that she had mental illness. In drafting the complaint, Brooks didn’t go through the process of identifying which major life activity was affected, or whether there was a substantial limitation. (Generally speaking, the “major life activity” that’s affected in mental illness is “thinking,” and it’s harder to show a substantial limitation in terms of thinking than it is for, say, seeing for a person who is blind, or walking for a person with paralysis who uses a wheelchair.)

So that was bad enough. Judge Feuerstein then discussed the main issue of the case — the 90-day deadline. Brooks argued in this case that the State of New York had a responsibility under the ADA to provide a reasonable modification to the rule to accommodate Mary Jo C.’s mental illness. And Brooks had a strong argument that a modification could have been provided. As it turned out, Mary Jo C.’s brother had contacted the comptroller’s office, asking for an extension. The request was rejected, but the comptroller said that Central Islip Public Library could file on her behalf, allowing her to meet the deadline. (Did the good people at the library take pity on Mary Jo C. and file the paperwork for her so she could get her disability retirement? Reader, they did no such thing.)

The New York Attorney General’s office, representing the august majesty of the Empire State, had a simple argument. The 90-day deadline wasn’t just a rule that could be modified. It was the law of the State of New York. The ADA, the AG’s lawyers reasoned, only required a reasonable modification. For the state to ignore its own law would not be reasonable, therefore, the state was within its rights to tell Mary Jo C. to buzz off.

An Erie Coincidence

I have to tell a little story here. I was in first year at the University of Texas Law School in 1991. I ended up going to a Federalist Society meeting — the only one I ever went to; not sure why. Anyway. All I remember about the speaker, whoever he was, was that he mentioned the Erie decision. The Erie decision dates back to 1938 and goes like this: sometimes federal judges have to interpret state law, and when they do that, they have to follow the decisions from state courts. (If there’s not a decision on point, the federal judge has to guess what a state might do.)

So it’s the next morning, and I’m sitting in the back row for whatever first-year law school class I’m in — don’t remember which one — and the professor asks the question, “Why does the federal court follow state law here?” I pop my hand up. “The Erie decision,” says I. One hundred heads turn my way.

I was not, you understand, known as a legal scholar at that time. It must have been, for my fellow students, like hearing your dog spout the Pythagorean Theorem. And it did not, sorry to say, make me very popular, as I had — rather unintentionally — shown them all up.

All right then. So Judge Feuerstein had an Erie problem. She had to look at the state substantive law to make a decision. And there is only one case on point — that of Louis Callace. The Callace case is very clear; the New York law cannot be waived. Judge Feuerstein cited the Callace decision for the proposition that the 90-day deadline may not be extended or waived by the State.

What Judge Feuerstein does not do is point out that the author of the Callace decision said that the outcome as an “obvious injustice.” She might have asked a very basic question here; whether the Erie doctrine should apply in cases where the state court has done something manifestly unjust. She did not. What she did was to throw out Mary Jo C.’s case with prejudice, arguing that she was not a “qualified person with a disability” because she was not entitled to have the New York law modified.

After reading her decision, I wanted to contact Judge Feuerstein and ask her, now that ten years has passed, if she thought she had done the right thing. Unfortunately, not too long before I started working on this project, Judge Feuerstein was killed in April 2021 in a hit-and-run accident in Florida. The alleged driver, arrested shortly afterwards, was a young woman named Snape. When she was arrested, she claimed to be Harry Potter. You can’t make this stuff up.

I Become A Pollster

When I look at both the Callace decision and the first Mary Jo C. decision, it doesn’t take me long to reach the conclusion that both cases were badly decided. But I spent a lot of time as a plaintiff’s counsel in these kind of cases. Of course I’m going to think this way.

I remembered the following bit from Michael Shaara’s classic The Killer Angels:

Then he talked to me for a while[about slavery], and he was trying to get through to me, just as I had tried with the minister. The difference was that this was a brilliant man. He explained that the minister was a moral man, kind to his children, and that the minister believed every word he said, just as I did, and then he said, ‘My young friend, what if it is you who are wrong?’ I had one of those moments when you feel that if the rest of the world is right, then you yourself have gone mad. Because I was really thinking of killing [the minister], wiping him off the earth, and it was then I realized for the first time that if it was necessary to kill them, then I would kill them, and something at the time said: You cannot be utterly right. And there is still something every now and then which says, ‘Yes, but what if you are wrong?’ ”

So maybe I was wrong. Maybe not everyone else thinks that these plaintiffs were treated unfairly. We live in a society where you can’t get people to agree that water is wet. I had to check whether I was maybe a little bit turned around on this, and the best way to do that was to become a pollster.

The way that you do that is through the Amazon Mechanical Turk program, which will (for a very small amount of money) allow you to set up whatever survey you want, and a good-sized sample of people will answer it in exchange for a nickel. I set up a one-question survey:

Carolyn worked as a state employee for twenty years. She became ill and was fired from her job. Carolyn was eligible for disability retirement, but because of her illness, she was unable to complete the application form within the three-month deadline. Because she missed the deadline, the state agency she worked for denied her application for disability retirement. Carolyn appealed this decision, but was turned down. Carolyn currently does not receive any disability retirement benefits because of this decision. Was Carolyn treated fairly by the state agency?

bar graph showing 25% saying Carolyn was treated fairly and 75% saying that she was treated unfairly
Again, you can’t make this stuff up.

I was, well, a little surprised by the result, which was a 75/25 split. A quarter of the responders thought that the fictional Carolyn was treated fairly? That couldn’t be right, could it? If I had phrased it as a political question, okay, maybe there’s a political bias against people like Carolyn. But I didn’t.

So I decided to try again. I made two changes. I included that Carolyn had a mental illness, and I asked people to say why they made their decision. The result was very similar, a 73/27 split, with slightly more people saying Carolyn was being treated fairly. Most of the comments were from people who thought there was unfairness. But the other comments (outside of the mean one that called poor Carolyn a “wack-a-doo”) followed two lines of argument. The first was that Carolyn had the opportunity to get help from someone:

  • She had three months to take care of it or ask someone to help her do it.
  • I understand that Carolyn has mental illness. But unless she was in the hospital, she should have been able to find help filling out the form.
  • She had time to fill out her disability application. If she was unable to do so, she could have had someone (HR office) help her fill it out.
  • Carolyn was given 3 months to complete and if they already reviewed the case and said she had the ample amount of time, then regardless of her mental disability that is her responsibility.

What I did not include in the question is the fact that Mary Jo C.’s brother did try to help her — and that her former employer refused to lift a finger to address the situation. So that sorts those people. But the other folks had a different issue:

  • She knew that there was a 3 month deadline to complete the application, and should have adjusted accordingly to compensate for it.
  • She had every opportunity to get her application filled out and I seriously doubt her mental health issue was so severe she couldn’t fill out an application in 3 months,
  • Because as per rule Carolyn need to apply for retirement benefits within three months period which she failed to complete.
  • She missed the clearly stated due date.
  • They had rules set in place, and she did not follow them.
  • The rules are the rules that everyone must follow.

The Rules Are The Rules That Everyone Must Follow

I am going to talk about baseball here for a little while if that’s not too much trouble. (If you don’t like baseball and want to skip this part, I understand.)

Here’s the situation. October 15, 2015. Rogers Center, Toronto. The deciding Game 5 between the Toronto Blue Jays and the Texas Rangers, American League Division Series. The winner goes on to the next round, the loser goes home. Top of the seventh at Rogers Center, game tied 2–2. Two out. Rougned Odor of the Rangers on third, Shin-Soo Choo at bat. Aaron Sanchez, a second-year starter pushed into relief duty for the playoffs, is on the mound and has worked Choo to a 1–2 count. He throws a 94 mph fastball over the plate, but the pitch sails high. The umpire calls it a ball. The count is 2–2.

Okay, maybe you didn’t get or understand everything in the proceeding paragraph. Doesn’t matter. What you need to understand is that when the pitcher throws the ball to the catcher (assuming the catcher, you know, actually catches the ball and it’s not put into play), the catcher then tosses the ball back to the pitcher. This happens a hundred times a game, more or less. It’s a completely routine action.

Then this happens:

Maybe you skipped past the video, so I’ll explain it. Three things happen, one after the other:

  • Martin, the catcher, attempts to throw the ball back to Sanchez, the pitcher, like you would normally do. Except that this time, the ball glances off the upraised bat of Shin-Soo Choo, the batter, and dribbles out towards the infield.
  • The runner on third, Rougned Odor, takes a second to process the situation, and then sprints down the line and crosses home plate before the Blue Jays infield can throw him out.
  • The home-plate umpire, Dale Scott, sees what Odor is doing, walks out from behind the catcher, waves his arms and points in the direction of third base.

So here’s the situation. Dale Scott, and the entire Toronto fan base, was of the opinion that the ball should have been called dead once Martin caught it. Exactly two people in the stadium knew the rule — Harold Reynolds, the color commentator in the Fox Sports booth, and Jeff Bannister, manager of the Rangers. (I don’t credit Odor for knowing the rule — maybe he did, it’s not clear, but I think he was acting on instinct or directions from the dugout.) Bannister comes out to argue that Odor’s run — which, as you may remember, was the go-ahead run in an elimination playoff game — should count.

So Bannister goes out, tells Scott what the rule is and the umpires huddle. They decide that, yes, the ball was live and Odor’s run should count. Bannister pumps his fist and heads back to the dugout. Toronto manager John Gibbons storms out from his dugout to confront the umps. Odor gets high fives from his teammates in the Texas dugout. The score is now 3–2 Rangers.

There is a longer version of the video that goes on for ten more minutes, showing the reaction of the Blue Jays fans in the stands. If you watch the whole thing, keep in mind that these are Canadians. Nice, polite Canadians, who are going absolutely batshit over this. Why are they doing that? I don’t think that it’s just because it was a call that went against their team.

I think that the absolutely apoplectic reaction of the Toronto fans was because they thought a basic rule was being violated. Keep in mind that nobody (other than the announcer and the Rangers manager) knew the rule. This is in part because the rule is completely obscure. It’s also because nobody had ever seen this before. Joe Posnanski covered the game for NBC:

Because: NOBODY HAS EVER SEEN THIS BEFORE. One-hundred-fifty years of baseball, we’ve seen throws kill birds, we’ve seen relievers brought to the plate in little cars shaped like baseball caps, we’ve seen a pitcher throw a no-hitter on LSD, we’ve seen a 3-foot-7 person draw a walk, we’ve seen closers choke stars, but WE’VE NEVER SEEN THIS BEFORE.

The rules, as my commenter said, are the rules that everyone must follow. And when that didn’t happen — when it appeared that the umpires had thrown the rules out the window — people reacted. They reacted poorly.

Why? Because, as people, we like rules. We like what lawyers like to call “bright-line rules.” We like it when other people follow the rules — even if we’re always willing to give ourselves an exemption. All the Toronto fans in the stands thought there was a bright-line rule that the ball in this case was dead — not just because it benefited their team. That’s the logical thing to expect. Even the umpire thought so. And then when the rule was disregarded, the nearest thing to a riot broke out. It wasn’t that their team got a bad call. That happens all the time. It was that an injustice had been done. The rules weren’t being followed.

And that’s just what the commenters said in the above poll. The 90-day rule was a bright-line rule, and poor Carolyn didn’t follow it. Might these people have some sympathy for people like Louis Callace and Mary Jo C.? Most of the people in the poll did, but a quarter of them put the rules over whatever sympathies they might have had. I am not saying that these people are bad people. They’re not. They’d just prefer to see the rules followed, and if you can’t follow the rules, for whatever reason, too bad for you.

Oh, and as much as it pains me to say this as a Texas Rangers fan, in the bottom of the inning, this happened:

Jose Bautista of the Toronto Blue Jays hits the game-winning home run and flips his bat in celebration.
You know how many playoff games the Texas Rangers have won since this happened? None. Even the Dallas Cowboys have won at least one playoff game since October 2015. The Rangers are 0–3 in the playoffs and are in the middle of another losing season. I will remind you again that this essay is called “Obvious Injustice” for a reason.

Fundamental Alterations

So the Mary Jo C. case was appealed, and found its way to the Second Circuit.

So I was giving a speech one time to a group of people I thought were lawyers. Turns out all the lawyers in the office (no fools they) bailed on the speech, and my audience didn’t understand what I meant when I was talking about the different circuits. So a brief explanation: the intermediate federal appeals courts (the ones between the district courts and the Supreme Court) are divided into twelve regions. The First Circuit is in Boston, the Second Circuit is in New York, etc. etc. There are eleven Circuits plus the DC Circuit in Washington. Most cases at the circuit court level are heard by three-judge panels. The Mary Jo C. case was heard by two circuit-court judges and a district court judge (“sitting by designation,” which is not all that uncommon).

The judge who authored the Mary Jo C. opinion is Robert Sack, a Clinton appointee who is now the senior judge for the Second Circuit. He started out his analysis by asking an interesting question: so just how important are the rules we follow, anyway?

Tom Cruise arguing a case in “A Few Good Men.”

Lt. Kendrick: Lance Corporal Dawson disobeyed an order!

Kaffee: Yeah, but it wasn’t a real order, was it? After all, it’s peace time. He wasn’t being asked to secure a hill or advance on a beachhead. I mean, surely a Marine of Dawson’s intelligence can be trusted to determine on his own which are the really important orders and which orders might, say, be morally questionable?

So that’s the question. Is the 90-day deadline enshrined in New York law a “real” rule that has to be followed no matter what? In the text of the ADA, there’s a concept called “fundamental alteration,” which basically says that there are some rules that are so important that you can’t change them, but any other rule can be changed to accommodate a disability. The most obvious example is the driver’s license; the ADA does not mandate that a state has to give a driver’s license to someone who is blind and can’t drive. But since the driver’s license is often used as an identification card, the ADA does mandate that the state has to provide an alternative identification card for people who can’t drive due to a disability; that’s not a “fundamental alteration” to the driver’s licensing function.

You may be familiar with the concept of Chesterton’s fence:

There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ‘I don’t see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.’

This is, without putting too fine a point on it, what the “fundamental alteration” analysis is all about. Let’s assume here that Chesterton’s fence does more than block a road; it denies access to someone in a wheelchair who can’t get around the fence. Under the ADA, the fence has to come down if it’s an architectural barrier that results in unfair discrimination, unless pulling the fence down is a “fundamental alteration” — i.e., there’s a good reason for the fence to be there, whether that is obvious or not. (Or an “undue burden,” if the cost of pulling the fence down is prohibitive in some way.)

The precedent that Judge Sack looked at was the famous Supreme Court decision in PGA v. Martin, in which the Supreme Court struck down the rule that professional golfers had to walk the course to accommodate Casey Martin, who could not walk the course without a great deal of pain and was requesting to use a golf cart to participate on the PGA Tour. The Supreme Court found that the rule requiring players to walk the course “is not an essential attribute of the game itself.”

This led to a classic dissent by Justice Scalia:

But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone–not even the Supreme Court of the United States–can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA TOUR) deems it to be essential.

The rules are the rules! But the rules are entirely arbitrary. And if the rules are entirely arbitrary, and result in discrimination — if not, as we’ve been talking about, obvious injustice — then why do we need to follow them? The 90-day deadline, even though it is enshrined in New York law, is completely arbitrary. There’s no good reason for the state to require forms to be in within 90 days as opposed to 91 days or 92 days or 93 days. Is there? Is there something so magical, so ineffable, about the 90-day rule that anyone who applies on Day 91 is required by law to never claim the disability retirement benefits that they earned over a decade or more of work?

If the rules are the rules, Judge Sack reasoned, and all of the rules are equally important (no matter how arbitrary they are), and all of them always have to be followed, this “seems to us to run counter to the ADA’s broad remedial purpose by allowing states to insist that whatever legal requirements they may set are never subject to reasonable modification under Title II of the ADA.”

What’s more, as Judge Sack pointed out, the state of New York had already waived the 90-day rule for anyone who had been impacted by the terrorist attack on the World Trade Center on September 11, 2001. So if the rules aren’t the rules for 9/11 survivors, why should they be the rules for people with mental illness? Why not make the same sort of accommodation for Mary Jo C.?

A Clear and Comprehensive National Mandate

So the one time in my life I got called for jury duty, I was trying like hell to get off the panel. The case was a drunk-driving case involving a rich defendant who was obviously guilty, and the defense attorneys announced early on that they would extend the trial by any means necessary to delay the defendant’s inevitable prison stay. (That case is still being litigated, twelve years later.)

I am a civic-minded kind of guy, but I am not a patient person and there was no way in this world I was going to hang around for this kind of nonsense, not when I had made up my mind that the defendant was guilty. So I told the trial judge the truth; I had a pending case before the Appellate Division and could be called in to give oral argument at any time. This… did not go over well. I was told, in no uncertain terms, that the Appellate Division could go hang.

The entire point of appellate courts is to tell trial courts what they got wrong. That’s all they do. This does not make appellate judges popular with trial judges. Trial judges make lots of decisions during the course of any case, and of course every decision is second-guessed by somebody.

In the lower court, Judge Feuerstein’s analysis in Mary Jo C. stopped at the finding that the 90-day deadline was New York law and that it would not be reasonable for the state to disregard its own law. Judge Sack took the analysis one step further. “We must inquire whether Congress, when it enacted Title II’s reasonable modification provision, intended to require modification of state laws under certain circumstances, thereby preempting them, or whether it instead intended the reasonable modification provision to stop short of encroaching on state laws.”

What Judge Sack means here by “preempting” is to say that federal law trumps state law when there’s a conflict. And that’s true even when there isn’t exactly a direct conflict. It was not as though the New York legislature, when it passed the law creating the 90-day deadline, was rubbing its collective hands together and chuckling to itself about how it was totally going to screw over Louis Callace and Mary Jo C. They probably never gave it a second thought. But the conflict isn’t between the laws, it’s between the New York law and the purpose of the ADA. Judge Sack noted that the purpose of the ADA was to implement a “clear and comprehensive national mandate” to stop discrimination against people with disabilities. If the ADA were to be subject to the vagaries of state law, “the ADA would be powerless to work any reasonable modification in any requirement imposed by state law, no matter how trivial the requirement and no matter how minimal the costs of doing so.”

What’s more, if Judge Feuerstein’s opinion was followed, “any state could adopt requirements imposing unreasonable obstacles to [people with disabilities], and when haled into court could evade the antidiscrimination mandate of the ADA merely by explaining that the state authority considered possible modifications and rejected them.” (Judge Sack is here quoting Crowder v. Kitagawa, a Ninth Circuit case where the court struck down a Hawaii law which put unreasonable restrictions on guide dogs coming into the state). Let’s suppose New York had a law that said there was a 90-day deadline to file for disability benefits, unless you had mental illness, then it was just 45 days. That would be clearly discriminatory, wouldn’t it? If New York could pass that law (which it could), the only recourse left for the people who were discriminated against would be that it would be preempted by the ADA.

As for the last issue in Judge Feuerstein’s opinion, that Mary Jo C. did not have a disability, Judge Sack reasoned that the only reason why Judge Feuerstein made this decision was because she thought the rest of the plaintiff’s claim was futile. Accordingly, he allowed Mary Jo C., on remand, to amend the complaint to show that she could meet the ADA disability definition.

Stipulated and Agreed

Exterior of US courthouse in Islip
U.S. Federal Courthouse, Islip, NY

Although it would be nice to think that Judge Sack’s opinion ended the Mary Jo C. case, it was sent back to Judge Feuerstein on remand. What she made of the Second Circuit’s decision is not recorded. What we do know is that, four and a half years after the complaint was filed, and a year and a half after the Second Circuit decision, the case of Mary Jo C. v. New York State and Local Retirement Sys. was settled. Mary Jo C. agreed to dismiss the case, and the state comptroller agreed to deem her previously filed application for disability benefits as timely filed. And Mary Jo C. agreed that the state had not admitted that it “has in any manner or way violated plaintiff’s rights, or the rights of any other person or entity.”

So was this justice, at long last? Technically, it wasn’t even the end of the case — the issue of attorney’s fees lingered for quite some time afterwards. Certainly Mary Jo C. got more justice than Louis Callace did, thanks to the ADA. But was it worth it?

Berkeley law professor Malcolm Feeley, in 1992, wrote a book called The Process is the Punishment, which was about how the criminal judicial process itself was a form of punishment for those accused of a crime. Having to go through four and a half years of litigation to get a just outcome may qualify as imperfect procedural justice, but it is no less imperfect for all that.

Having said that, the lasting impact of cases like Mary Jo C. is not just the benefits that they provide to the winning party. Having a strong Second Circuit opinion that state law is not a safe harbor against ADA reasonable modification requests is something that helps every future litigant with a similar claim. Every person with a disability going forward with a claim against a state will be helped to make their case because Mary Jo C. and her attorney stuck it out and got a positive decision.

Of course, that leads to the question, “Just how much good has the Mary Jo C. case done to help ADA plaintiffs over the last ten years?” And that’s a question that calls out for further legal research. Something like a law review article.

Which I suppose, now, I have to write after all.