Protecting Homeless Women and Men Seeking Shelter; City's New Homeless Policy Blocked By Court Ruling
MONDAY, FEBRUARY 27, 2012

Manhattan State Supreme Court Justice Judith J. Gische ruled last week that the Department of Homeless Services cannot implement a controversial new policy that would have permitted the denial of shelter from the elements for homeless single women and men. On behalf of homeless women and men and the Coalition for the Homeless, The Legal Aid Society argued that the new policy was in violation of 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. The Legal Aid Society and pro bono counsel Wilmer Cutler Pickering Hale and Dorr LLP also 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. The New York City Council also challenged the proposed new policy on the grounds that the Department violated the City Administrative Procedure Act.

Steven Banks, the Society's Attorney-in-Chief, told The New York Times that "it should not have required litigation to stop this plan that would have resulted in women and men in need of shelter being turned away." Banks called the Department of Homeless Services' approach "a textbook case in arbitrary government." He said the Department's own projections showed that at least 10 percent of the women and men seeking shelter each year -- some 2,000 New Yorkers -- would be denied help under the proposed plan.

New York City Council Speaker Christine Quinn said that the "Court ruling declaring the Department of Homeless Services' eligibility requirements for single homeless adults unlawful is a tremendous victory and I commend the Court for its action. The Council has long argued that DHS' proposed policy would have needlessly put thousands of homeless New Yorkers on the streets by requiring them to provide proof they have nowhere else to stay. This was a wrong-headed policy that put a burden of proof on people who could least shoulder it. "




The New York Times
Bloomberg's New Homeless Policy Is Blocked
February 22, 2012
By Alan Feuer

Saying New York City had failed to follow its own procedure for making rules, a State Supreme Court judge ruled on Tuesday that the Bloomberg administration could not impose a new, much tighter set of regulations on homeless people seeking shelter.

In November, the city’s Department of Homeless Services announced plans for the new rules, which would include investigation of claims by single adults that they had nowhere else to go. In public statements at the time, Seth Diamond, the department’s commissioner, said the new policy would most likely reduce the shelter population by about 10 percent and save the city $4 million a year. In the fall, the shelter population reached a record high of 40,000 people.

The Legal Aid Society, and eventually the City Council, sued, saying the policy was "mean-spirited" and violated a 1981 consent decree that required the city to provide shelter to anyone who sought it. They also argued that because the city tried to impose the rules quickly — in only days — it did not comply with the City Administrative Procedure Act, which requires a process of public vetting. As a result of the litigation, the city did not begin carrying out the rules.

On Tuesday, Justice Judith J. Gische of the Supreme Court ruled that the department had ignored the law by trying to rush the rules onto the books. The rules, which are similar to those that have controlled the admission of families to the shelter system for nearly 15 years, would have forced single shelter applicants to prove, among other things, that they could not stay with a relative.

Christine C. Quinn, the Council speaker, praised Justice Gische’s ruling, saying the policy would have "needlessly put thousands of homeless New Yorkers on the streets by requiring them to provide proof they have nowhere else to stay." Calling the policy a "shelter denial plan," Steven Banks, the chief lawyer for Legal Aid, said, "It should not have required litigation to stop this plan that would have resulted in women and men in need of shelter being turned away."

Commissioner Diamond said the city planned to appeal "the disappointing decision," adding that it turned on the narrow issue of administrative procedure. At his own news conference, Mayor Michael R. Bloomberg said the rules had not been intended to close shelter doors, but rather to ask applicants to show that they indeed were in need of assistance.

"You cannot say, ‘I’m tired of paying my rent, therefore, the taxpayers of New York City should just pay my rent,’ " Mr. Bloomberg said. A homeless adult, like a homeless family, he said, should be required "to show that you need shelter."

Hours after Justice Gische’s ruling, in an unrelated decision, a state appeals court said the city did not immediately have to pay rent for the 8,000 families still enrolled in a rental-subsidy program for the homeless that was canceled last spring. Most of the people in the city’s shelters are families with children.

The appellate decision also turned on a slender legal issue. The city argued that a contract — specifically, a lease — existed between homeless people helped by the program and the landlords who rented them apartments, but not between the renters and the city itself. An appellate panel for Manhattan Supreme Court agreed, and decided that the city had no immediate obligation to keep paying the subsidies after the state terminated the program.

The $140 million-a-year program, known as Advantage, was introduced in 2007. It offered two-year subsidies of about $1,000 a month, but only if recipients received job training or worked. The state and federal governments supplied two-thirds of the financing; the city paid the other third and administered the program. Citing budget constraints, Gov. Andrew M. Cuomo announced last spring that the state was withdrawing its money from the program. The city ended it shortly after.

Advocates for the homeless, like Mr. Banks of Legal Aid, are concerned that thousands of families currently in their own apartments will be unable to pay their rent and end up in shelters or on the streets.




Wall Street Journal
Court Ruling Blocks City's Shelter Policy
February 23, 2012
By Michael Howard Saul

A state judge on Tuesday blocked New York City's plan to turn single adults away from homeless shelters unless they demonstrate they have no other housing options, marking another setback for Mayor Michael Bloomberg's homeless policies.

New York state Supreme Court Justice Judith Gische nullified the new policy establishing a stricter application process for single adults seeking access to homeless shelters. The policy was made public in November but has not been implemented.

The ruling faulted the city's failure to bring the new policy before the public and the City Council, a violation of the City Charter. Judge Gische declined to address substantive arguments against the new shelter rules, writing that those concerns are now "academic" since the policy had been struck down.

The city plans to appeal the decision.

Seth Diamond, commissioner of the city's Department of Homeless Services, said in a statement that the ruling "does not undermine the city's strong reasons for developing this common sense procedure, nor does it make any determinations about its legality other than ruling on the method used to issue it."

City Council Speaker Christine Quinn, a potential 2013 mayoral candidate, had joined homeless advocates in filing a lawsuit against the Bloomberg administration over a policy she deemed "punitive" and "wrongheaded."

On Tuesday, Ms. Quinn lauded the ruling. "The court got it right," she said in an interview. "The Bloomberg administration had violated the rule-making provision of the Charter."

Mr. Bloomberg defended the policy, saying it makes sense to ensure only truly needy people gain access to homeless shelters.

"You cannot say, 'I'm tired of paying my rent; therefore, the taxpayers of New York City should just pay my rent.' OK? That's not reasonable," the mayor said. He added that the city is "more generous" than any other major city in the U.S. when it comes to the needy.

"Let the judges explain to the public why they think that you should just have a right to walk in and say, whether I need services or not, you give it to me," Mr. Bloomberg said. "I don't think that's what this country is all about and never will."

For the Bloomberg administration, the ruling marks another high-profile setback on homelessness, an issue that has long dogged the mayor.

In 2004, Mr. Bloomberg set a five-year goal of cutting both the number of people who sleep on the streets and use the shelter system by two-thirds, but neither pledge has been fulfilled.

As The Wall Street Journal reported in November, the city's homeless-shelter population exceeded 40,000 for the first time on Halloween Night, capping a rapid rise in homeless children and families following the elimination a rent-subsidy program, called Advantage, last spring.

In a legal defeat for homeless advocates last week, the appellate division of the state Supreme Court denied a request that the city be forced to continue making payments as part of the Advantage program. February will be the first month that participants will not get a subsidy, which advocates say could send thousands of families back into shelters.

While the Bloomberg administration moves ahead with an appeal of Tuesday's ruling on homeless-shelter eligibility rules, a city official said the process of publicly vetting the proposal would not begin because the administration believes that would set a bad precedent.

For critics of the new policy, however, the continued legal maneuvering by the Bloomberg administration is part of the problem.

Steve Banks, attorney-in-chief at the nonprofit Legal Aid Society, chastised the city for pursuing "more litigation rather than reconsidering a misguided policy that will only result in women and men ending up homeless on the streets."




City's New Rule on Homeless Skirted Process, Judge Says
Jeff Storey
New York Law Journal
02-22-2012

A Manhattan judge has thrown out a controversial new process for determining the eligibility of single homeless adults for temporary admission to New York City shelters. The Department of Homeless Services announced the eligibility requirements on Nov. 4 for implementation on Nov. 14. Among other things, applicants would be required to prove they had no other place to go before entering a shelter. The City Council and other opponents immediately went to court, arguing that what they characterized as a "shelter denial plan" violated a 1981 consent degree.

Ruling on two companion cases, Supreme Court Justice Judith Gische (See Profile) did not reach that question, but she nevertheless declared the new policy a "nullity" because it had not been vetted by an "express, rigorous procedure"—including publication and public hearings—city agencies must follow in enacting new rules. Finding that the new process would limit agency discretion and dictate certain outcomes, Justice Gische found that it fell under the definition of a "rule" in the City Administrative Procedure Act. She disagreed with the city that the requirements represented only "strict interpretations" of existing state rules and regulations. The cases are Council v. Department of Homeless Services, 403151-11, and Callahan v. Carey, 42582/79.

Homeless Services Commissioner Seth Diamond said in a statement that the city would appeal. Moreover, he said that "Judge Gische's disappointing decision does not undermine the city's strong reasons for developing this common sense procedure, nor does it make any determinations about its legality other than ruling on the method used to issue it."

But Steven Banks, attorney-in-chief of the Legal Aid Society, which represented the Callahan plaintiffs and the Coalition for the Homeless, called the city's approach "a textbook case in arbitrary government." He said the city's own figures showed that 2,000 people would be denied assistance under the plan, a 10 percent decline representing a "sea change" in the city's policy toward the homeless. Wilmer Cutler Pickering Hale and Dorr served as pro bono co-counsel with Legal Aid.