Court nixes Giuliani's 'Slavery-for-Shelter' proposal

Graeme Bacque (
Thu, 09 Dec 1999 05:54:02 -0500

December 9, 1999

State Court Halts Giuliani Plan to Make
Homeless Families Work for Shelter

Related Article 
Mayor Defends Homeless Efforts as a Carefully Coordinated Plan (Dec. 9,


NEW YORK -- A state court Wednesday temporarily halted the
Giuliani administration's plan to make homeless families work for
shelter, saying a measure that would put children in foster care if
parents failed to meet that and other welfare rules was frightening. 

"We all know that the implementation of this strikes terror in the
hearts of
people who have children," Justice Elliott Wilk of State Supreme Court
Manhattan said. He dismissed as "a fantasy" the city lawyers'
of administrative safeguards for homeless parents who would face
expulsion from shelter and child neglect charges for violating welfare

The city had planned on Monday to start enforcing the regulations, which
makes the city's homeless shelters subject to the same system of
screenings, job searches and work assignments necessary to get welfare. 

The temporary restraining order issued Wednesday delays the measures
at least until Jan. 14, when a hearing is to be held to determine
the plan violates an earlier court ruling that the city cannot seek to
children in foster care because their families lack housing. 

The order came at the end of an unusual emergency hearing presided
over by two judges, Justice Wilk and Justice Helen E. Freedman, who
are both veterans of litigation over homeless families. 

Justice Freedman ruled in May 1997 that the city could move ahead with
state shelter regulations, but barred it "from seeking foster care
based upon lack of housing," 

and from "applying the regulations arbitrarily or irrationally" or in a
that violated the law. 

Her decision was based in part on a previous ruling by Justice Wilk,
upheld on appeal in 1989, that said such actions would violate the State

Lawyers for the homeless asked each judge separately for a temporary
restraining order because of their earlier rulings, but they agreed to
the arguments together in Justice Freedman's courtroom. 

"I've received tremendous objections from the clergy, particularly a
letter from Cardinal O'Connor," Justice Freedman said after citing her
own concerns that mothers and children would be harmed by the plan.
"The analogy he made was putting the children in the manger." 

When Justices Wilk and Freedman set the hearing date for January,
Leonard Koerner, the chief assistant corporation counsel, pressed for a
Dec. 22 date instead. 

"I don't think you really have to implement this for Christmas," Justice
Wilk replied. 

The city's plan would affect 5,000 homeless families, including 9,000
children, who are now in city-financed shelters, as well as any families
who apply for shelter and are disqualified for 30 days to six months
because of welfare violations. 

Koerner argued that the State Supreme Court had no authority to stop
the plan because the appellate division had already rejected some
arguments that were made by lawyers for the homeless during three years
of litigation. 

Koerner contended that the Appellate Division, in upholding Justice
Friedman's ruling, despite some concerns, had also found that the
regulations were constitutional on their face and could only be
case by case after they were put into effect. 

He was clearly exasperated by the court's decision to delay the
regulations. He told the judges that the legal maneuver by Steven Banks,
a Legal Aid lawyer who is also counsel to the Coalition for the Homeless
and who sought the temporary restraining order, "is one of the most
outrageous applications I've ever seen." He said Banks deserved a legal
reprimand for trying to reargue issues that a higher court had already

"You and Judge Wilk are powerless to change this," he said to Justice
Freedman. "The only court that can change this is the Court of Appeals." 

Justice Wilk conceded, "You may be right," but added that "in the spirit
of the season," and to read the case history and legal briefs properly,
would grant Banks's request. 

Justice Freedman questioned the city lawyer about the regulations,
special concern for victims of domestic violence who might feel obliged
to go back to their abusers and for mothers who might miss workfare
appointments in order to care for their children. Koerner responded that
the city plan provided exceptions for such cases, and numerous chances
for parents to contest their penalties. But the judges were not

"There is tremendous concern about how it is being implemented
elsewhere," Justice Freedman said. "There are children sleeping all over
the place." 

"At some point the city has to be allowed to implement this," Koerner

But Justice Wilk suggested that what was happening was a reaction to
new information about how the plan would actually work. The response,
he said, was, "Oh my God, nobody anticipated, least of all the Court of
Appeals . . . " 

"Everybody anticipated it," Koerner broke in. 

Banks cited the mayor's recent declaration that sidewalks in a civilized
society are not for sleeping, and the police policy of removing the
homeless from public places and refer them back to shelters under threat
of arrest. 

With that backdrop, Banks said, "implementing a plan to eject homeless
families from shelters is plainly irrational and arbitrary if anything
can be
considered irrational and arbitrary." 

"There's also the reality outside," he continued, as dusk gathered at
windows of the high-ceilinged courtroom, and the judges listened under
large letters spelling out "In God We Trust." 

"It's winter. It's cold," and "Christmas is just around the corner."