City Journal

Peter Hellman
Justice Freedman v. New York
For over a decade, an activist judge has made a shambles of New York City’s policy for homeless families.
Spring 1997

Sitting in Justice Helen Freedman's courtroom while she hears arguments in McCain—the seemingly endless case about New York City's policy for homeless families—you don't have to wonder long where her sympathies lie. The State Supreme Court justice wears her heart right on the sleeve of her black robe. She scowls or glares at the city's lawyers; she smiles or gazes benignly at the wiry, intense Steven Banks, lead lawyer for the Legal Aid Society's Homeless Family Rights Project since the beginning of the case. Banks is the teacher's star pupil. As he says with a twinkle in his eye, "I'm a conservative, because all I want is for the judge's orders to be followed."

In scores of rulings since 1985, Freedman has stymied New York's efforts to take control of its policy for homeless families. She has shaped policies governing both how the Department of Homeless Services screens applicants for eligibility and how it treats those who ultimately receive shelter. McCain's paperwork now fills an entire room in the office of the city's corporation counsel in lower Manhattan. Thanks to Justice Freedman, New York has become the nation's undisputed champion in dispensing benefits to families declaring homelessness—a title that the city is now struggling mightily to cast off.

The McCain case goes back to 1983, when Yvonne McCain was living with her five children in a welfare hotel in Manhattan. As one of 13 plaintiffs in a class-action suit brought in State Supreme Court, she demanded that the city provide her family with permanent housing—not voluntarily, but as her right. Legal Aid's Banks argued that various statutes and the state Constitution guaranteed this right to shelter. Though Justice Edward Greenfield finally rejected McCain's claim of a right to shelter, he did order that, once the city agreed to house a family temporarily, it had to meet "minimum reasonable standards," such as a bed for each person, clean linens, and access to a bathroom with hot water.

Greenfield's order went into such detail because neither the city nor the state had yet developed standards for shelter. The State Department of Social Services, then under Governor Cuomo, moved quickly to fill the void with its own regulations. The department also issued a notorious administrative directive called 83-ADM-47. A high point for social activism but a nadir for common sense, the directive assured homeless benefits to any "eligible" family and required that such shelter be provided "immediately"—a strikingly unrealistic dictate in a city where nothing is scarcer than housing.

Enter Helen Freedman, who took over McCain from Justice Greenfield in 1985. A onetime lawyer for the city's most powerful municipal union and the wife of Henry Freedman, executive director of the Center on Social Welfare Policy and Law and one of the nation's leading advocates for expanding welfare rights, she brought impeccable activist credentials to the case. Wasting no time, she quickly invoked the state directive and ordered the city to provide emergency shelter to any family asking for it, no questions asked.

Determined not to relinquish its homeless policy to judges, the Koch administration took McCain in 1986 to the appellate division of the State Supreme Court. But the court's ruling just added to the confusion. While it limited the power of the lower courts to set minimum standards for shelter, reserving that right for the State Legislature, it also pointed to the "likelihood" of a right to shelter, as Banks had been arguing from the start. And it upheld Freedman's order concerning emergency shelter. Shortly thereafter, Freedman ruled that the city's Emergency Assistance Unit (or EAU), where homeless families with children go to seek help, was an office, not a shelter, and therefore the city could not keep families there overnight, even if it was still attempting to determine their eligibility.

McCain then moved on to the Court of Appeals a year later, for what was expected to be a definitive ruling on the all-important issue of a right to shelter. But like the appellate division of the State Supreme Court, the state's highest court also tiptoed away from deciding on Banks's radical interpretation of Article XVII of the state Constitution—which, though stating that the "aid, care and support of the needy are public concerns and shall be provided by the state," also reasonably explains that this shall be done "in such manner and by such means, as the legislature shall from time to time determine." The Court of Appeals contented itself with ruling that the lower courts did indeed have the power to "fashion equitable relief"—that is, to issue standards for shelter—for homeless families. Combined with the state directive, this was just the license for micromanagement that Freedman needed.

In the McCain courtroom, Steven Banks and Justice Freedman work together like a couple of experienced ballroom dancers, gliding and whirling to the same ideological waltz and long accustomed to each other's moves. He leads and she obligingly follows. The city almost always sits out.

Consider the following exchange from a McCain hearing last spring. Banks had asked Freedman to make the city stop requiring applicants for emergency shelter to call a telephone "hot line" before coming to the EAU, claiming that it was used to discourage homeless families from seeking shelter. He had also requested that she ban "logging out," a procedure that allows the EAU to keep out clients who leave the facility on a temporary pass but do not return by the next morning.

JUSTICE FREEDMAN: Okay . . . I'm going to grant that relief [banning the hot line]. Would you please submit an order . . . by Monday or Tuesday?

BANKS: We'll submit it this week, your honor.

JUSTICE FREEDMAN: I'm also going to enjoin the improper logging out. Now that's a harder one. Can you fashion an order to do that?

BANKS: Yes, your honor.

Freedman then turned to Banks's demand that no family be kept at the EAU longer than 24 hours, even though state regulations allow 48 hours.

JUSTICE FREEDMAN: I do not understand why you need to keep anyone on the floor for 24 hours. I understand that the 48 hours . . . obtains, but as far as I understand that, that means for [finding them a] placement. But I see no reason for people to be left on floors pending the placement.

BANKS: Shall we so provide in the order to be submitted?

JUSTICE FREEDMAN: Yes. For Monday.

For more than a decade now, this has been the drill in the McCain courtroom: the city or state establishes a procedure or writes a regulation. At Banks's request, Freedman blocks it. She then issues his version of the procedure or regulation as an order of the court, and if the city doesn't comply, she brandishes a charge of contempt—a threat that she has not hesitated to carry out.

Justice Freedman escalated her activism in McCain in the early nineties. At the time, rising numbers of families in New York were declaring homelessness, in large part because of the city's exceedingly generous policies. In the mid-eighties, when the city's pockets jingled with money, Mayor Koch had launched a multi-billion-dollar effort to build or rehab thousands of units of housing, much of it for the homeless, and had set aside thousands more units for the homeless in existing public housing. Families that qualified often found themselves in their own homes after as short a wait as three months, leapfrogging long waiting lists of the working poor. While these homeless families awaited their new apartments, the city put them up in welfare hotels, where they were guaranteed such amenities as room cleaning every other day, a weekly change of linens, and a restaurant allowance of several hundred dollars a week.

In 1990 Freedman barred the city from using several of these welfare hotels, despite the fact that they met state standards. The source for her objections: Steven Banks and his staff, whose claims about unacceptable conditions she took as gospel. When caseworkers at the hotels testified that the city had taken care of the problems, the judge declared their testimony "unconvincing." Of course, Freedman could have visited the hotels in question to make up her own mind. The city asked her to do just that. She refused.

In the hotels that Justice Freedman did approve, she ordered the city to furnish private cooking facilities for all rooms for families with children—despite a state regulation explicitly allowing rooms that were less fully equipped. Freedman's reasoning departed from the usual concerns of a court. With in-room cooking, she explained in an early 1991 order, children would not eat so much unhealthy fast food, which would presumably be their staple if the family just received a meal allowance. Fast food, she warned, is "high in fat and salt." Sound advice from a dietician. But from a judge?

Insisting that such renovations need not be costly, Freedman cited advertisements, supplied to her by the Legal Aid Society, claiming that a compact kitchen could be installed for as little as $800. The city's Department of Homeless Services showed that just installing the ductwork necessary to meet fire and building codes would cost more than that.

Justice Freedman has turned her prerogative to "fashion equitable relief" into a tour de force of judicial micro-meddling. No detail of the EAU's operation has been too small to escape Freedman's attention—right down to the availability of bottle warmers. As Susan Demers, former general counsel to the State Department of Social Services, writes in the Fordham Urban Law Journal, Freedman's actions in McCain are "precisely the kind of excessive entanglement in executive agency operations that courts should avoid and that our jurisprudence contemplates they will avoid." The court, she continues, "has never found that the state and city have failed to provide . . . shelter to homeless families in keeping with applicable statutory or constitutional mandates."

Justice Freedman hasn't confined herself to the petty details of the city's homeless programs; she has intervened in government policy making at the highest level. Toward the end of 1995, the State Department of Social Services attempted to replace its 1983 directive with new eligibility regulations for homeless families. The old rules, in keeping with the liberal sentiments of the eighties, placed no responsibility on shelter residents to refrain from "dangerous or disruptive behavior." Anyone engaging in such behavior was simply transferred from one shelter to another rather than booted out of the system. The new directive allowed a shelter to eject a family that flouted the rules—by fighting, ignoring standards of cleanliness, violating curfews, or selling drugs. The same went for a family's refusal to cooperate with social workers in designing an "independent living plan" meant to get them out of the homeless system and into permanent housing.

Though the idea that responsibility went two ways was new to homeless family policy in New York, the revised regulations were far from draconian. A family evicted from a shelter for bad conduct could apply for housing again after just 30 days. As for the "independent living plan," a family just had to cooperate in creating it; the city could not penalize a family for failing to meet its goals.

Compared to the stern welfare reform legislation then sweeping through Congress, the 1995 state directive seemed, if anything, downright softhearted. But Banks did not see it that way. "Steve kept insisting that these regulations meant that children would be ejected into the streets," explains Bert Knaus, the lead lawyer for the Department of Homeless Services. "But without a process, how do you get leverage over people to get them to do what they're supposed to do? Any rational person will follow rules if faced with consequences." At a hearing in November 1995, city attorneys listened in shocked dismay as Justice Freedman announced, "These regulations are cuckoo." At Banks's request, she issued a temporary restraining order, summarily halting their implementation. Apparently, Freedman believes that it is a civic duty to provide shelter to families no matter how bad their behavior.

The stillbirth of the new regulations was "the most frustrating moment in my career," says Joan Malin, then commissioner of the DHS. By "gutting" these new regulations before they could have a chance to work, Freedman had "approached them as if they were presumptively illegal," says Knaus. "It's supposed to be the other way around. Regulations issued by a competent state agency ought to be presumed lawful."

The longest-running—and most public—battle between Justice Freedman and the city has been over "front end," or intake, procedures at the city's Emergency Assistance Unit in the Bronx. In 1991 the judge held the city in contempt at Banks's demand for failing to move families with children out of the EAU quickly enough. She sentenced four Dinkins administration appointees to spend the night at the facility (a punishment overturned on appeal). Last summer, in response to seasonal overcrowding at the EAU, she again slapped the city with a contempt charge, threatening to make it open another such facility if overnight stays did not end. She also demanded a halt to the city's effort to enroll adults at the EAU in workfare or even to discuss the program with them. An indignant Mayor Giuliani charged that Justice Freedman "has lost all perspective on what it means to be a judge in this legal system."

The former factory building that houses the EAU, squat and terminally dreary, sits beside the Metro-North tracks, almost under the shadow of Yankee Stadium, at the corner of 151st Street and Walton Avenue. Families wanting to declare homelessness after 5 pm or on weekends, when welfare offices are closed, must come here. Though Banks and Freedman have seen to it that the EAU provides certain free services—three meals a day, showers, basic baby supplies, nursing care—nights at the EAU are nobody's idea of a fun camp-out. The facility has no beds other than cribs; adults and older children awaiting eligibility or a placement must sleep on the floor or on plastic chairs. Overhead lights remain on all night.

For those willing to bear such discomfort, the EAU is the gate to an urban version of the promised land. Beckoning on the other side is a stay at one of the city's 75 motel-style, Tier II residences, complete with private bath and kitchen facilities. Some 12,500 people now live in these shelters, each family costing the city $100 a day. Tier IIs impose no work requirement, and residents can spend as long as two years in them. At one of these shelters, I was told not to walk the halls at 11:45 am because many of the women would still be in their nightgowns.

From a Tier II residence, families move on to their own apartments, usually by winning a federal Section 8 rent voucher, which provides far more cash for rent than welfare does—for a family of four, $761 a month, versus $312. The city pays for moving expenses, a security deposit, broker's fees, and furniture, and gives landlords a bonus of up to $1,000. For New York alone, the price tag for all its services and programs for the homeless is $400 million a year. It is a package well worth a stay at the EAU, even if the nights are miserable.

Justice Freedman long insisted that the EAU place all families with children into temporary housing before a night had passed. She could claim authority for this view by pointing to the state's 1983 directive, which required families declaring homelessness to be sheltered "immediately," and to the subsequent ruling by the appellate division of the Supreme Court that took the directive literally. She now allows the city 24 hours for a placement—her split-the-difference response to a 1994 state directive that explicitly gives agencies 48 hours for a housing placement. Having failed to get the appellate division of the Supreme Court to overturn this defiant gesture, the city has asked the Court of Appeals to review it.

What explains the overcrowding and delays at the EAU? Not the city's cold indifference but rather its difficulty determining who in fact is eligible for homeless benefits. Most families arriving at the EAU have been living doubled or even tripled up with relatives or friends. Often a young, single mother has decided she no longer wants to live with her mother or grandmother. She has left voluntarily but can claim that she has no housing options—and the city must give her a respectful hearing. Such families believe—with reason—that the best route to subsidized housing of their own starts at the EAU, and they are willing to languish for days to get it.

In McCain hearings, Steven Banks often brings the plight of these families to Justice Freedman's attention, but such cases are not always what they seem. Last year, for example, Banks complained that a homeless, wheelchair-bound, HIV-positive mother and her children had been forced to spend night after night at the EAU. Sounds pretty terrible, doesn't it? Except, as the city discovered, the family actually lived in public housing. The woman's husband, it seemed, had been caught burglarizing a neighbor's apartment. Fearing retribution, she had come to the EAU with her children to demand another apartment elsewhere. A matter for the police rather than the city's homeless agency? Not according to the woman—or Banks.

Or take New York native Deborah Davis, who was living in Florida until her son "started messing up" in high school. Last summer Davis moved to New York with her two kids because, she explains, it was "the only place as far as helping us." Davis's plan: to go to nursing school and to enroll her son in an "alternative high school"—once the city provided her with public assistance and permanent housing. Legally, nothing stops Davis—or anyone else from anywhere else—from becoming a welfare pilgrim to New York.

Even when the city agrees to house a family, it is not always easy to do. Most Tier II shelters are not set up for, say, a family with nine children. It is especially difficult to place teenage boys in a Tier II filled with single mothers, some of them also teens, whose days are idle. The former director of a Tier II in Queens remembers calling into her office two teenage brothers who had "girlfriends" in each wing. "If you don't slow down," she counseled the boys, "it's going to fall off."

It is easy to confuse who is doing what to whom at the EAU, as the press confirms every time it reports on the issue. It seems as if the big, callous city were forcing children to sleep bedless on the cold floor. In fact, it is their elders who often insist on camping out at the EAU, even though they were sleeping on beds somewhere else the night before. They are the ones who have thrust their children into this grim situation. And if the city were to whisk off each arriving family to housing that is acceptable to Steven Banks, the number of applicants would soar. Of the estimated 200,000 to 300,000 families living doubled up in New York, who among them could resist, if upgrading their housing at taxpayer expense required nothing more than walking into a city office?

If the city's housing opportunities are not incentive enough to attract families to the EAU, Justice Freedman has made it profitable for them merely to come pass the time there. From 1991 to 1994 she hit the city with fines of $50 a night, payable to each family with children kept at the EAU overnight if they arrived by midnight, and an additional $100 a day after that. Freedman suspended the fines against the city in 1994 but two years later decreed new ones, now raised to $150 a day for families kept at the EAU more than 24 hours. By the end of 1996 the DHS had processed over 30,000 claims and paid out more than $6 million.

Filing for fine payments has become a lucrative ritual for some EAU regulars, who are advised of their right to cash payments by signs on the premises. By the end of 1996, according to DHS records, 728 families had reaped over $1,000, and 58 families had topped $2,000. The biggest money winners tend to have larger families, which, being harder to place, typically stay longer. Sadel Johnson got $6,500 for a total of 41 visits to the EAU. Bernard Robinson got $5,400 for 29 visits. Kawaina McCullough got $5,200 for 18 visits. And Ben Nicholson, the current champion, received $7,250 for 28 visits with his family.

"Family" and "child" are the operative words in qualifying to receive the fines, and the EAU defines both with the utmost flexibility. Anyone under age 21 is a "child"—a profound irony since many parents at the EAU have yet to reach that age. And a "family" is just about any group choosing to call itself that. The four adults and five children in Ben Nicholson's family, for example, have four different last names. Or consider the Rojas family: 27-year-old Maria Rojas, a 17-year-old boy who she claimed was her legal husband, and his 15-year-old sister. Rojas had previously come to the EAU with a different "husband."

Since last summer's overcrowding, the EAU has taken a new, tougher stance on eligibility for benefits. "When [Justice Freedman] threatened to make us open another EAU if overcrowding continued," explains a city official, "we screwed up our courage and decided, okay, we'll make it harder to get in the front door." EAU workers started turning away families that had been living with relatives or friends, telling them to go back to where they had slept the night before. Surprisingly, most families are persuaded to do just that. Even more surprisingly, Justice Freedman has, so far, permitted the city to carry out this new policy despite the protests of Banks. It would seem that the mayor's fierce criticism of last summer has chastened her, at least for now. And the result of the city's toughened eligibility policy at the EAU? Less crowding, which is just what Freedman demanded.

Change has yet to come, however, to the two large, windowless rooms in the Department of Homeless Services where a staff of four "temps" and two supervisors continues to process claims for fines by families that stayed at the EAU as far back as 1991. In determining who is to be paid, the clerks must dig through dozens of cabinets and cartons filled with old EAU check-in and check-out logs, as well as passenger manifests for van transfers from the EAU to other shelters. It is a slow task, and over 6,000 cases remain open. The department's Bert Knaus calls the process, which Banks and the Legal Aid Society supervise, "a nightmare on top of an unworkable remedy."

The lead "temp" on the payment team is Angela Baker. She was once, briefly, on welfare herself. She earns just $6 a hour, with no benefits. At that rate, Baker makes less for a day's work than she pays to a family for staying overnight at the EAU. "When you sit at the screen and pay somebody $1,000—I've paid up to $3,000—you ask yourself what you're paying them for," says Baker. "Because a girl says, `I don't want to be with my mother anymore so I'm gonna hang out for a while at the EAU?' I can't see the logic behind it."

Helen Freedman, please explain.

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