NYC's shelter mandate at heart of question of what to do with migrant surge

For more than four decades, New York City has been bound by a unique-in-the-nation mandate: Anyone in need must be provided taxpayer-funded shelter for free.

Now, with the homeless shelter system straining from an influx of tens of thousands of immigrants from abroad, Mayor Eric Adams’ lawyers are in court asking for permission to partially suspend the mandate for adults without children. 

State Supreme Court Justice Erika Edwards on Wednesday presided over off-the-record negotiations in her chambers on the city's request, later saying the parties are working “extremely hard" and adding: "I’m very optimistic that we will be able to resolve this in due time.” 

New York State’s highest court hasn’t addressed the question of whether there’s a right to shelter in every one of the state’s 62 counties.

But Dave Giffen, executive director of the Coalition for the Homeless in the city, said in an interview that he thinks the mandate applies across the state, and should continue to apply, to all, including the “new arrivals” — and should be enforced statewide, cost notwithstanding.

“It doesn’t say, ‘aid, care and support of the needy’ up to some number,’ or ‘aid, care and support of the needy who are documented households,’ ” he said of a state constitutional provision at issue. “It’s an important concept that underlies our philosophical approach to helping people in need in New York.”

Other U.S. municipalities provide limited rights to shelter — for District of Columbia residents, when the temperature falls below freezing; in Massachusetts, for parents with children and pregnant women — but no others go as far as New York City, according to advocates.

The meaning and scope of the mandate is at the heart of the controversy over what to do with the migrants pouring in, and who should pay for their shelter, food and other costs. City officials are raising the question of whether the mandate should continue to be fully in effect during a time when the city is struggling to pay the costs and find room for an unprecedented number. 

Historic settlement dates back decades

The settlement that led to the ruling dates to 1979, when a 26-year-old lawyer named Robert Hayes, originally from Valley Stream and at the time working for the Wall Street law firm Sullivan & Cromwell, clinched a favorable ruling during the Koch mayoralty.

The terms of a settlement he helped negotiate two years later said the city must provide shelter to any homeless man, and it set standards for those accommodations. Further litigation later in the 1980s expanded the mandate to women, and then to homeless families.

The lawsuit was a class-action case. The lead plaintiff was Robert Callahan, a World War II veteran and short-order cook who wound up living as an alcoholic in the Bowery in Manhattan. The lead defendant was Gov. Hugh Carey.

Hayes cited the state constitution’s Article 17, approved in 1938 during the Great Depression: “The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.”

Hayes convinced state Supreme Court Justice Andrew Tyler, who ruled that the “destitute and homeless alcoholics, addicts, mentally impaired derelicts, flotsam and jetsam” were entitled to board and lodging, and the state and city are jointly responsible to pay for the “hapless and hopeless men.” (Callahan, who did not live to see the settlement, was found dead on Mulberry Street.)

Now, more than 40 years after the settlement, roughly 60% of the 104,400 immigrants from the surge starting last spring are being sheltered, fed and otherwise cared for by the city. That means, 59,300 are living in city shelters, according to figures released Wednesday. In the latest week, 3,100 migrants came to the city.

A majority of the city’s homeless population are now migrants from the influx, which began last spring. Adams has warned that the city is running out of room; the city’s costs in the crisis could be $12 billion by 2025, he has said.

Deputy Mayor Anne Williams-Isom said in July that the immigrants are drawn here because "they're hearing about New York City and what they get when they come to New York City."

In 2003, a midlevel appeals court ruled that some restrictions can be imposed related to the right to shelter. The ruling said: "there is nothing in the decree that provides or even suggests that the defendants undertook to provide shelter unconditionally, indefinitely or regardless of need." 

In an interview last week, Hayes said he doesn’t understand why the mayor and governor don’t push to have the mandate expanded statewide, given the language of the New York constitution that helped win the case more than 42 years ago.

“It seemed axiomatic, it seemed obvious, to the court that at a bare minimum, ‘aid and support’ had to be a roof over your head, and that’s called shelter,” said Hayes, who now runs a nonprofit providing health care to the needy.

Nassau also under homeless mandate 

The city mandate wasn’t Hayes’ only victory. He also sued Nassau in federal court in Brooklyn and won a permanent settlement mandating emergency shelter for homeless families 24/7. He told Newsday in 1987 that the county is “notorious for being the least helpful to poor people in the state.”

Greta Guarton, executive director of the Long Island Coalition for the Homeless in Amityville, says that her understanding is that nowadays Nassau and Suffolk each provides shelter, so long as a person is that county’s resident and isn’t an immigrant illegally in the United States.

An exception: “If a child who is born in this country becomes homeless, they will be housed in shelter, and they will have to obviously have a parent or guardian with them."

She referred inquiries about specific homelessness policies to each county's social services department.

Chris Boyle, a spokesman for Nassau Executive Bruce Blakeman, on Wednesday did not address whether the county was complying with, or is still bound by, the settlement. But he wrote in a message: “Nassau County is fully compliant with all right to shelter requirements that do not include undocumented asylum-seekers.”

Suffolk spokeswomen didn't return messages seeking comment. 

There are 3,536 homeless people on Long Island, of whom 1,463 are children, according to the coalition’s latest census. All but 199 of the total homeless population live in shelters, which she says is an undercount. Those who don’t are on the streets, in tents, in the woods, in abandoned buildings, in train stations, among other places, Guarton said.

But none of the recent migrants from the latest surge — most from Latin America and West Africa — are in Long Island homeless shelters, she said.

Whether the state constitution affords shelter to everyone — as broadly as is the mandate in the city — is an open question the state’s highest court hasn’t addressed, according to Ross Sandler, a former city official and professor at New York Law School.

“There was never a resolution of what the right really consisted of. That’s why only New York City is bound by the settlement agreement, which doesn’t reach the rest of the state,” he said.

Sandler said the judge hearing the case in Manhattan, which returns to court Sept. 18, cannot apply the Callahan settlement, and the right to shelter it established, statewide. To do that, there would need to be a new case, which eventually could end up at the state's Court of Appeals.

But advocates — such as the Legal Aid Society, which is in court opposing the city’s position, Guarton’s group, as well as the city Coalition for the Homeless, and Hayes himself — believe the Constitution’s “aid, care and support” provision means the right-to-shelter mandate already does apply to all 62 counties, a court mandate notwithstanding.

“It’s a pretty easy case now that the precedent has been established,” Hayes said.

Statewide expansion at issue

It’s not just some advocates who want a broader mandate.

Brad Lander, the city comptroller, repeatedly has advocated for the city to seek a statewide expansion of the mandate. He called it "the fastest way to increase shelter capacity and secure more support from Albany without turning our back on who we are."

The state attorney general, Letitia James, recently withdrew her representation for the state in the Callahan case; the state was a defendant in the original case, and in the settlement agreed to pay certain shelter costs. 

The city would like the state to stop municipalities from banning the relocation of migrants into those municipalities. 

Hochul said last week she believes the right to shelter applies only to the city: “I'm not sure it was ever meant to be a universal right of unlimited shelter to anyone who comes to the City of New York, but I'll certainly tell you that right does not extend to the entire State of New York.”

James, who has said she views housing as a statewide “human right,” cited only “a philosophical difference" with Hochul. Last week, Adams deputy Fabien Levy declined to say what the administration thinks about having a statewide mandate, saying: "We'll let the lawyers speak for themselves."

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.