The most momentous decision at this moment in New York—whether the City should be bound to house every homeless person who needs it—continues to be argued over largely in secret. In a closed-to-the-public court conference today, lawyers for the Adams administration pressed once again to get out of its obligation to provide shelter.
The Adams administration has been in court for much of 2023, trying to persuade a judge to let it out of a legal commitment the City made in 1981's landmark "right-to-shelter" case. Some 100,000 migrants have arrived over the last year, and the administration has struggled to shelter the 60,000 new arrivals that are currently in its care, in addition to the tens of thousands of others who live in the shelter system. "This issue will destroy New York City," Mayor Eric Adams said earlier this month.
Lawyers from the Legal Aid Society, representing the other side of the agreement, have fought to hold the City to its commitment, arguing that rather than giving up, the City should work harder to cooperate with the state and federal government to live up to the standards set by the court-ordered agreement. Governor Hochul, for her part, has been beating the drum to end a right to shelter, and state government sources have said the Biden administration also wants the right to shelter gone—a rumor the Biden team denies.
Under the longstanding terms of the lawsuit that gave rise to the 1981 settlement, most of the discussion and argument over this question have taken place not in open court, but in the privacy of the judge's chambers—and since the City reopened the landmark case, those chambers have belonged to Judge Erika Edwards. Members of the press and public are left to guess at what is happening and to glean insight from competing press statements from Legal Aid, the Adams administration, and New York state.
Earlier in the summer, Judge Edwards told the parties that rather than letting the City out of its right-to-shelter obligations, she wanted the Adams administration to articulate in writing what it required from the state and federal government to manage the challenge of sheltering migrants coming to New York. The resulting negotiations bore some fruit, with state and federal officials promising money and assistance in finding migrants shelter and making them eligible to work.
Nevertheless, City lawyers were back in Judge Edwards's chambers on Tuesday afternoon, asking for permission to make a new, revised application to change the terms of the consent decree. The judge set a schedule for arguments on the City's request, which will take the form of letters to the judge, and will not appear on the public docket. The City's letter is due October 3. Legal Aid and lawyers for the New York State will have until October 11 to respond. The City's reply will be due October 18.
What exactly will the City be seeking in its letter? Judge Edwards, returning to open court from the secret conversation in her chambers, did not elaborate, and the Mayor's Office didn't answer our question, instead replying with a statement. "The Callahan decree was never intended to apply to the circumstances our city is currently experiencing," the statement reads in part. "As we continue to seek a national solution to this national crisis, we know the status quo is not working for longtime unhoused New Yorkers or for asylum seekers."
Josh Goldfein, a lawyer with the Legal Aid Society, which is defending the right to shelter in the proceedings, spoke to the press after the hearing. The fact that the Adams administration is evidently still pursuing efforts to wriggle out of its commitment to shelter people in New York City doesn't make sense, Goldfein said, given that much of the help that it requested from the state and federal governments are in process: President Biden has extended temporary protected status for Venezuelan migrants, who make up a significant number of the people seeking shelter in the city, making them eligible for work permits; the federal government is accelerating its processing of work permits for other eligible migrants; and Governor Hochul is working to speed the work authorization process and is taking more responsibility for settling migrants outside of New York City.
"All of those tools are coming together," Goldfein said. "And the governor's plan is becoming effective and should be given time to work. It doesn't make sense at this moment for the City to ask to be relieved of its obligations to protect people from dying on the streets of New York."
Tuesday's hearing took place against the backdrop of another court case in Staten Island, in which a different state judge cast doubt on the very existence of a constitutional right to shelter. In his ruling, which directed the City to stop housing migrants in a former school facility in the borough, Judge Wayne Ozzi called the 1981 consent decree a "relic of the past" that "does not create the 'right to shelter.'"
Goldfein, asked about Judge Ozzi's ruling on Tuesday, said it is exceptionally bad, and expects it to be decisively overturned on appeal. The Adams administration, which is fighting in front of Judge Edwards to nullify its obligation to provide shelter, is expected to argue in the Staten Island case that it is obligated to provide shelter, and is therefore compelled to use the school facility.
In yet a further wrinkle, Judge Edwards, who has been presiding over the right-to-shelter case since the City first sought to renegotiate its obligations earlier this year, announced abruptly at the end of Tuesday's hearing that she'll be recusing herself from the case going forward, in order "to avoid any potential appearance of impropriety that my impartiality might be questioned as it may appear that I have a motive to favor one party over the other."
What does that mean? Why might it appear that the judge has reason to favor one party? Did one of the parties ask for this recusal, or did the judge volunteer it? Is this some new potential conflict of interest, and if it isn't, why didn't the judge recuse herself months ago? Neither the judge nor a court spokesperson would answer any of these questions.
Updated (9/27/23, 10:20 a.m.): This post has been updated to include a statement from the Mayor's Office.
