New York Court of Appeals Rules That The Department of Homeless Services Violated The City Administrative Procedure Act When It Tried To Implement A Shelter Denial Rule For Homeless Women And Men Without Any Public Review

The New York Court of Appeals has affirmed appellate and trial court rulings barring the New York City Department of Homeless from implementing a controversial new policy that would have permitted the denial of shelter from the elements for homeless single women and men. The ruling came in litigation brought by the New York City Council as a related case to The Legal Aid Society's litigation on behalf of homeless women and homeless men.

The Society and the Council had prevailed in the Appellate Division, First Department and in the trial court, but the Department of Homeless Services decided to only appeal the rulings in the Council's case and not the rulings in the litigation brought by the Society. On behalf of homeless women and men and the Coalition for the Homeless, The Legal Aid Society and pro bono counsel Wilmer Cutler Pickering Hale and Dorr LLP had argued that the Department of Homeless Services failed to comply with the City Administrative Procedure Act because the Department did not provide public notice and an opportunity for public comment on this sea change in City policy.

Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told the Wall Street Journal that "[i]t’s important that the highest court in the State has said that the current administration can’t do an end-run around the requirements of publishing rules for public comment, particularly here where the policy is so misguided that it would result in more homeless women and homeless men on the streets.” If the Department of Homeless Services still plans to move forward with the shelter denial rule, Banks told the New York Law Journal that the Society would return to court to challenge the rule because it "would violate the 1981 consent decree that the City signed guaranteeing access to homeless services."

When the City proposed the new policy in November 2011, The Legal Aid Society challenged the policy and predicted that many vulnerable homeless New Yorkers would not be able to comply and would end up being denied shelter unlawfully. The City has admitted that the proposed new policy would result in the denial of shelter to between 10 and 60 percent of the nearly 20,000 homeless women and men who seek shelter during the course of a year. Before the trial court, The Legal Aid Society argued that the new policy would violate a 1981 consent decree that requires the City to provide shelter to women and men in need of shelter by reason of physical, mental or social dysfunction or who meet the need standard for public assistance, but that issue was held in abeyance pending the outcome of the appeal involving the Department of Homeless Services' violation of the City Administrative Procedure Act.

The Wall Street Journal
Court Rebuffs Mayor Bloomberg’s Homeless Policy
ByMichael Howard Saul
November 26, 2013

New York’s highest court ruled Tuesday that Mayor Michael Bloomberg's administration violated the law by failing to notify the public about changes it sought to the eligibility rules for single adults pursuing a bed in New York City’s homeless shelters–marking another setback for the mayor’s policies on homelessness.

The state Court of Appeals affirmed two lower court rulings that effectively nullifies the administration’s plan — first made public in November 2011 — to turn away single adults from city shelters unless they demonstrated they have no other housing options. The courts didn’t rule on the merits of the policy, but found the administration’s failure to vet the policy before the public violated the City Charter.

The City Council, led by Speaker Christine Quinn, took the unusual step of suing the Bloomberg administration to prevent what Ms. Quinn, a Manhattan Democrat, called a “cruel” and counterproductive policy from taking effect. On Tuesday, Ms. Quinn hailed the court’s decision as a victory because she said it blocks the mayor from implementing a policy that would have kept thousands of men and women out of shelters.

“The opinion is an important victory, not only for New York City’s homeless adults, but also for the principles of openness and accountability,” Ms. Quinn said. “The mayor cannot unilaterally impose policies that would have such significant impact without even notifying the public or receiving comments.”

Ms. Quinn, who ran unsuccessfully for mayor this year, said she hopes the Bloomberg administration will “finally abandon its misguided” policy.

Thomas Crane, chief of the city Law Department’s general litigation division, said the administration is disappointed with the decision.

“Shelter should be a last resort, when all other resources have been exhausted,” Mr. Crane said.

A spokeswoman for the city’s Department of Homeless Services declined to comment, saying the Law Department would be responding for the administration.

Since Mr. Bloomberg took office in January 2002, the nightly homeless shelter population has increased 69% — there are now more than 52,000 people, including 22,000 children, sleeping each night in a city shelter.

During the first three months of the current fiscal year, the average number of adults in shelters per day increased 8% and the average length of stay for single adults in shelters increased 5%, according to the city.

Steve Banks, attorney in chief at the Legal Aid Society, a nonprofit that also sued to prevent the policy from moving forward, said, “It’s important that the highest court in the state has said that the current administration can’t do an end-run around the requirements of publishing rules for public comment, particularly here where the policy is so misguided that it would result in more homeless women and homeless men on the streets.”

Patrick Markee, a senior policy analyst at the Coalition for the Homeless, an advocacy group, said he’s hopeful the incoming mayor, Bill de Blasio, will adopt a more “sensible” approach to the city’s growing homeless population. Mr. Markee described the mayor’s policies on homelessness as “mean spirited” and “punitive.”

“It’s clear that the mayor’s approach to homelessness has been a failure just based on the dramatic increase in the numbers of homeless people to all-time record levels,” Mr. Markee said. “We’re glad we’ll be turning the page.”

A spokeswoman for Mr. de Blasio, the city’s public advocate who succeeds Mr. Bloomberg on New Year’s Day, said, ”Mayor-elect de Blasio opposes punitive eligibility review rules–such as those struck down today–that make it harder for people and families in need to access shelters.”

During the mayoral campaign, Mr. de Blasio described Mr. Bloomberg’s approach to homelessness as a failure and he promulgated policies that he said would improve the situation.

The New York Law Journal
City Fails in Bid to Restrict Single Adults' Shelter Eligibility
Joel Stashenko
November 27, 2013

ALBANY - The Bloomberg administration's attempt to introduce new eligibility restrictions for single adults seeking temporary admission to New York City's homeless shelters was rejected Tuesday by the state's highest court.

The rules require single adults to show they cannot afford to pay for housing and have no other place to go before gaining access to shelters.

The 6-0 court held in Matter of the Council of the City of New York v. Department of Homeless Services, 193, that the restrictions were not adopted according to the City Administrative Procedure Act (CAPA).

CAPA requires city agencies to give the public at least 30 days' notice of adoption of an impending rule and to hold a public hearing prior to implementation.

The court said in a ruling written by Judge Victoria Graffeo (See Profile) that it is "undisputed" that the Department of Homeless Services (DHS) failed to follow the CAPA guidelines when it sought to introduce its Eligibility Procedure requirement.

"The policy is clearly intended for broad application—it pertains to all single adult applicants who seek THA [Temporary Housing Assistance]," Graffeo wrote. "Mandatory procedures and uniform standards of this type have generally been determined to be rules under our precedent."

The court rejected Homeless Services' two arguments in defense of the way the eligibility procedure was adopted: that the procedure is not a "rule" subject to CAPA's guidelines or that it falls under an exemption to CAPA's mandates.

The procedures that were to be followed by Department of Homeless Services' personnel when screening applicants for admission at shelters are "mandatory," despite the city's claim that the procedures were up to the discretion of intake employees, the court held.

"All intake workers must follow it, regardless of the circumstances presented by an individual applicant, and many of the standards articulated in it are mandatory in the sense that their application will dictate whether an individual will or will not receive benefits," Graffeo wrote.

The Court of Appeals also said that, contrary to the Bloomberg administration's contention, Homeless Services must still comply with the CAPA requirements even if it believes the new rules were forced upon the city by a state mandate on eligibility for publicly assisted shelter.

"To the extent DHS's hands are tied in some respects due to certain strict standards found in the pertinent State regulations, the agency can assert this point during the regulatory review process," Graffeo wrote.

Chief Judge Jonathan Lippman (See Profile) and Judges Susan Phillips Read (See Profile), Robert Smith (See Profile), Eugene Pigott Jr. (See Profile) and Jenny Rivera (See Profile) were in the majority. Judge Sheila Abdus-Salaam (See Profile) took no part.

The ruling affirmed the rejection of the new homeless shelter eligibility rules by Manhattan Supreme Court Justice Judith Gische (See Profile) (NYLJ, Feb. 22, 2012) and a unanimous Appellate Division, First Department panel (NYLJ, Feb. 15, 2013).

In its brief challenging the rules, the City Council argued that the eligibility procedure would overturn 15 years of practice where homeless adults have been allowed admission to shelters without passing a needs test or, indeed, even having to show identification.

The City Council also argued that, by the Department of Homeless Service's own estimate, at least 10 percent and as many as 60 percent of the single adults using homeless shelters could lose access to those accommodations if the eligibility procedure went into effect.

Jeffrey Metzler argued on behalf of the City Council.

City Council Speaker Christine Quinn called the ruling an "important victory" for homeless adults and for "the principles of openness and accountability" that are codified in CAPA.

"As the Court rightly held, the Mayor cannot unilaterally impose policies that would have such significant impact without even notifying the public or receiving comments," Quinn said in a statement.

Assistant Corporation Counsel Ronald Sternberg represented the Department of Homeless Services.

"Shelter should be a last resort, when all other resources have been exhausted," said Thomas Crane, chief of the corporation counsel's General Litigation Division in a statement Tuesday. "We are disappointed with the Court's decision today."

The City Council's case had been paired throughout the litigation against the homeless eligibility rules with a similar challenge brought by the Legal Aid Society, Callahan v. Carey. While the city appealed the First Department's ruling in the City Council case, it did not appeal in Callahan.

Steven Banks, attorney-in-chief of the Legal Aid Society, said Tuesday's ruling "stands for the proposition that city agencies can't do an end run around proper procedures when promulgating a rule."

Banks said if the city takes another run at implementing the eligibility rule, his group is prepared to renew the Callahan claim that such needs tests violate a 1981 consent decree the city signed guaranteeing access to homeless services for the destitute in New York City.

The New York Times
November 26, 2013
City Erred in Putting Shelter Rules Into Effect, Court Rules
By The New York Times

The Bloomberg administration violated city rules in trying to carry out a policy that imposes stricter requirements for sheltering homeless adults, New York State’s highest court ruled on Tuesday.

The decision by the Court of Appeals is the third ruling that strikes down the new eligibility screening, which advocates for the homeless argue would violate New York City’s legal mandate to provide shelter. The court rulings, however, did not address the merits of the policy but rather the way officials tried to put it in place — without public review as required by the City Administrative Procedure Act.

Both the City Council and the Legal Aid Society brought lawsuits over the procedural issue, temporarily blocking the more stringent screening by the Department of Homeless Services. Under the new requirements, intake workers would determine admission based on standards such as the level of cooperation shown by the applicant and a thorough showing of need through documentation pertaining to prior housing, financial resources and mental or physical impairment.

City officials described the efforts as a rational way to determine who should be given shelter, but critics said the policy would have denied emergency aid to thousands of the most vulnerable New Yorkers.

“Had this plan being put in place it would have, I believe, forced countless New Yorkers in time of need out into the street,” said Christine C. Quinn, the Council speaker.

City officials expressed disappointment with the court’s decision and said they would review their options. Thomas Crane, a senior city lawyer, said in a written statement, “Shelter should be a last resort, when all other resources have been exhausted.”