Litigation for the Homeless in the 1980s

A Look Back

RICHARD PINNER

In this chapter I describe how a small nonprofit organization called the Coali­tion for the Homeless beginning in the late 1970s, but most notably in the 1980s, approached a social problem: the crisis of mass homelessness.¹

“Crisis,” by its very nature, connotes an emergency.

result from a foreign aggressor, the storm of the century, or a radical change in technology. There is no date or threshold number that we can look at and say, “That's it, that's when it began” There is no December 7, 1941, for the homeless.

When a tornado hits, news reports quickly recount the damage (say, $2 billion). Knowing that number implies that if we spent that much money we'd put the community back to where it was before the storm. Contrast that with homelessness: even if we could definitively count the homeless popula- tion,² would the crisis begin when there are a million Americans? Or 2 mil­lion Americans? At any one time or as the socially vulnerable cycle in and out of homelessness in the course of a year?³ Or is it when one homeless person sleeps on your doorstep?

Further complicating matters, its causes and characteristics can be viewed differently depending on whether you are looking at it on a local, regional, or national basis or in an urban, suburban, or rural setting.⁴ Rather, modern mass homelessness is the product of a multitude of factors (none of which alone, or perhaps even in pairs, would have engendered this magnitude).

So what led a social phenomenon of long standing to rise to the level of crisis? Four factors, I think, were most important:

First, the homelessness crisis was evolutionary rather than revolutionary, creeping up on us; it did not have an obvious tipping point. In New York City in the 1960s, for example, the homeless consisted for the most part of “bag ladies and Bowery bums” (stereotyped as homeless mentally ill women and white male alcoholics, respectively). When young single men and women and then whole families began appearing on the streets in the late 1970s, the per­ception of the problem ratcheted up.

Second, with a few notable exceptions, extreme poverty has long been hidden in the shadows,⁶ with a population lacking the income, wealth, and political clout that draws public attention. But homelessness is a very public event. People living on the streets and in abandoned cars are much more vis­ible than people living in squalid apartments.

Third, the New Deal helped change the sense that government had a responsibility to care for its citizens. Social movements that began to gain prominence in the 1950s and 1960s led many to believe that citizen activists had a role in getting government to accept that responsibility. Homelessness became a crisis because activists called it a crisis to draw attention to the problem and get government to address it.

Fourth, and perhaps most important, homelessness stood out to the public more when compared to the affluence of the modern American society. It definitely undermined the sense that everyone could partake in the Ameri­can Dream. Even with economic downturns in the late 1960s through the mid-1970s, the United States still had great affluence and a strong middle class.

Once homelessness in the late 1970s/early 1980s was tagged as a crisis, the inquiry turned to how to remedy it. As Robert Hayes, the cofounder of the Coalition for the Homeless, put it: “Look, you see a problem. If you’re a jour­nalist, you write about it; if you’re a poet, you probably write a poem about it.” And if you’re a lawyer, you take someone to court.⁷ Which is exactly what happened.

The causes and characteristics of the homelessness crisis did not change the tools by which the legal community approached the problem; existing litigatory and nonlitigatory approaches were used and adapted, but none were really invented. They did, however, affect how those tools were deployed and in what sequence. For the practitioner, how this unspooled is important to understanding what worked and what didn't work during the fifteen to twenty years when homeless rights litigation was in its most visible state.

As a preliminary note, it is worth pointing out that because of how the cri­sis came about, when it came about, the lack of legal precedents, and general public sentiment, the legal advocacy strategies (both litigatory and nonlitiga- tory) had several notable characteristics:

■ There was no established game plan;

■ there was no established team;

■ there was very little relevant case law;

■ it was iterative and not comprehensive; and

■ at least in the beginning, it was more reactive than logically sequential.

Despite this seeming ambiguity, every story needs to start somewhere, and the legal remedy to dealing with modern homelessness can be said to have begun with Callahan v. Carey (1981).⁸ Callahan involved the right to shelter for homeless men in New York City.

Not surprisingly, the federal claims did not to prevail. Seven years earlier, an increasingly conservative United States Supreme Court, in San Antonio School District v. Rodriguez,¹² declared that poverty was not a suspect classifi­cation. If cases such as Goldberg v. Kelly^li which greatly enhanced the notion of property rights and that due process was needed prior to the deprivation of those rights, gave advocates for the poor some hope that substantive rights were on the horizon, Rodriguez was a cold reminder that substantive due pro­cess under federal law was not an easy litigatory approach.

State law, by contrast, would prove to be a much more fruitful avenue. Ar­ticle XVII, section 1 of the New York State Constitution provides:

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.¹⁴

As we all well know, brevity of a constitutional provision does not mean that it will not lead to substantial litigation; and generality does not mean that it will not be stretched to cover items and topics that cause strict construction­ists to groan.

In an opinion and order dated December 5, 1979, state justice Andrew R. Tyler granted the Callahan plaintiffs' motion for a preliminary injunction. In a decision that was as short as it was un-heartwarming, Justice Tyler wrote that “the Bowery derelicts are entitled to board and lodging.” Moreover, the entire legal analysis was confined to a single paragraph at the end, which stated:

The legal authorities for the decision may be found in Article XVII, Sec. 1. of the New York State Constitution. Sections 61 (1) and (3) (1) and (3) of the Social Services Law. Section 604.1.0 (b) of the New York City Administrative Code. Matter of Jones vs. Berman, 37 N. Y. 2nd 42.

Generally, it is widely accepted that the foundational basis for the decision was Article XVII, section 1 of the state constitution. Justice Tyler's decision was only a preliminary injunction, so the parties still had to fully adjudicate the matter. The case then went to trial. By all accounts the city was not con­sidered likely to prevail. Mayor Edward Koch agreed to enter into a consent decree with the plaintiffs. Those who read the consent decree often are struck by how little is actually in there. It is only twelve pages long. The performance standards are limited to thirteen items/⁵ and standards are in an appendix/⁶ When you're dealing with something for the first time—which is often true in a crisis—there are few places to turn to for advice and guidance. Callahan was truly a case of first impression, and the consent decree was definitely created on an ad hoc basis.

Callahans state trial courTh preliminary injunction (which was effectively the law of the case), however, was not going to be interpreted as creating a right to housing for anyone. Once the Coalition and other advocates realized that homelessness was not going to be quickly or easily resolved and that, even under the best circumstances, shelters were only a short-term emergency fix, the focus turned to how to address more systemic change.

Focusing on subpopulations gave advocates the leverage that they would not otherwise have had pursuing generalized rights. A deeper look at two of these subpopulations—the homeless mentally ill, and those who were in­fected with the human immunodeficiency virus (HIV)—is illustrative of the methods that plaintiffs' counsel used?⁹

It would come as no surprise that a substantial portion of the homeless sin­gles population suffered from serious mental illnesses.²⁰ Estimates vary, but a safe figure is one-third.21 Litigating on behalf of this subgroup had several advantages. For one, you could deal with a substantial part of the population. With nearly 10,000 homeless single adults then in city shelters and thousands more on the streets, relief for this particular portion of the homeless popula­tion would result in a significant improvement for the overall homeless popu­lation. Moreover, the narrative of how the many mentally ill individuals had become homeless was fairly straightforward. While the public tended to think that the homeless mentally ill were all recent dischargees from hospitals,22 in reality the sequence was a bit more drawn out, and the bulk of it occurred enough before street homelessness that it is not considered a direct factor by many.2³ Additionally, the consensus among advocates and researchers has been that as long as there were low-cost private accommodations in the com­munity, then the mentally ill could hold on to their housing. But those accom­modations dried up not long after deinstitutionalization was under way. New York City alone lost more than 100,000 single-room occupancy units (SROs) in the 1970s alone, with an overall loss, according to the Supportive Housing Network of New York City, of 160,000 SRO units (from 200,000 to less than 40,000) between 1955 and 1995. Many of the mentally ill population—without supportive family and the care that community mental health centers were to offer—ended up on the streets. And once on the streets, most mentally ill individuals would, not surprisingly, end up decompensating—their mental states becoming significantly worse and making it quite difficult to reverse their fortunes. (The converse scenario was also valid: homelessness could trigger otherwise dormant mental illness.)

And while mental illnesses were, and still are, not treated as sympatheti­cally as physical ailments, it's not hard to make the simple case that schizo­phrenia and other mental illnesses are not the sufferers' fault and that the onus is then on society to deal with them. Similarly, because mental illness crosses many demographic categories, the families and friends of mentally ill individuals have been an effective lobbying group to change the percep­tion of policy makers. Groups advocating for the rights of individuals with psychiatric disabilities effectively helped change the perception that just because mental illness does not show up on an X-ray, it is not an illness. Law schools generally don't teach you to find a sympathetic client, but any practitioner will know that it makes a difference. Finally, and perhaps most important, there were other laws aside from the state constitution.

Enter John Klostermann, a long-term, revolving-door user of the New York State mental health system. In 1981, in a case originally filed against Governor Hugh Carey of New York and that would ultimately take the name Klostermann v. Cuomo, the plaintiffs, including John Klostermann, brought their action in state supreme court (again, this is the state's trial court) claim­ing that their repeated discharge from state-run psychiatric facilities was in violation of section 29.15 of the New York State Mental Hygiene Law, which required a written “service plan” for each patient, including “a specific rec­ommendation of the type of residence in which the patient is to live.”²⁴ The state argued that the case was not justiciable, that is to say, these were func­tions that only the legislature could address. The New York State Court of Appeals, without addressing the underlying merits, disagreed, holding that while the method of delivering the service was within the ambit of the execu­tive branch, whether or not it was delivered could be enforced by the plain- tiffs.2⁵ Moreover—and this has been important in impact litigation in New York ever since—the legislature's failure to supply adequate resources is not an excuse.2⁶ On remand, Justice Richard Wallach granted some of the de­fendants' motions, striking certain causes of action and, more importantly, denying plaintiff's cross-motion for summary judgment. He wrote: “Plaintiffs' request under CPLR 3211 (subd [c]) for partial summary judgment that plain­tiffs must be ‘ensured a suitable residence' under the provisions of the Mental Hygiene Law is denied on the ground that such disposition would be entirely premature on the present record.”²⁷

Then the litigation stalled. The sense at the Coalition was that, following the Klostermann decision in the Court of Appeals and then Justice Wallach's opinion on remand, the state largely cleaned up its act. Whether that was true—or just hopeful—is difficult to parse out. But by 1987, the sentiment was that things were worse. Complicating matters, advocates realized that the city of New York, which is one of the few municipalities to operate its own hospital system (which generally provides acute care), was discharging its patients to the street or to the city's congregate shelter system (that Cal­lahan engendered).²⁸

The Coalition therefore retooled Klostermann to revisit the state's compli­ance and bring in New York City with a common law cause of action (i.e., that there is a baseline duty of care). With section 29.15 arguably applying only to state facilities, the argument against the city was considered to be more difficult. In November 1987, the Coalition filed Heard v. Cuomo (state) and Koskinas v. Boufford (city). After nearly three years of motion practice, none of which got to the substance of the case, these two actions were assigned trial dates.

Helpful to practitioners is that the Heard and Koskinas trials and subse­quent appeals were not the only efforts. In fact, before the trial, plaintiffs' counsel met with the state (which did not like the negative attention) and offered to settle for a fixed number of housing units and an agreement to work on the claim against the city. While nothing came of the meeting, it was at least cordial. A similar meeting with New York City's corporation counsel included the threat that the city would “close Bellevue [Hospital]” if it had to undertake the discharge obligation. Those of us on the plaintiffs' side who were in the meeting hoped that the threat was an idle one (as it turned out to be).

Even then, the city and state attempted a flanking move, though they would deny it was in response to the litigation. Effective as of July 1, 1989, but formally signed on August 22, 1990, the New York/New York initiative was a city and state collaboration to create more than 3,600 units of supportive housing for homeless mentally ill individuals and another 1,600 (existing) units set aside for the population?⁹ These numbers were well below the stated need but were still a significant step in the right direction.

The Heard and Koskinas trials began in early 1990. Following nearly two weeks of testimony, Justice Edward Lehner concluded that the state defen­dants were not in (substantial) violation of their statutory obligations. But the city defendants were obligated to create and implement written discharge plans (which included residential accommodations) under sections 29.15 (f), (g), (m), and (n) of the Mental Hygiene Law. And unlike its state counter­parts, the city was not in compliance with those obligations. Justice Lehner did not address the common law claims. But, he concluded, given that “in view of the fact that there is not now in existence sufficient available housing to enable [the New York City Health and Hospitals Corporation] to imme­diately fully comply, the judgment shall provide for implementation over a period of time. Suggestions as to the appropriate time period for compliance shall be submitted with the proposed judgment.”³⁰

Upheld on the first appeal at the appellate division,³¹ following the Court of Appeals' acceptance of the case, Judge Joseph Bellacosa cautioned that “at this stage of this monumental social crisis and of this litigation, we deem it advisable to observe that the injection of the building-of-housing argument as a [New York City Health and Hospitals Corporation] governmental duty constitutes an overreading of the judgment at issue as affirmed by the Appel­late Division and, now, our Courts² In essence, the Court of Appeals, while linguistically dinging the plaintiffs' hope for housing development, was actu­ally adopting the narrow argument that threads the justiciability needle that the plaintiffs opened: the obligation is proper for a court to enforce, and how government gets there is up to the government. Klostermann and its successor cases definitely go in the “win” column.

If homeless mentally ill persons were a relatively sympathetic cast, home­less adults who were HIV positive in the mid-1980s and through at least the mid-1990s were probably on the opposite end of many spectrums. Without getting into the same chicken-and-egg issue as mental illness—which was the cause and which was the effect—it was clear that many homeless individuals were HIV positive. It was also clear that the same congregate shelters that were the fixture of the New York City shelter system were not optimal loca­tions for people with compromised immune systems. For instance, beds were required to be no closer than 30 inches apart under Callahans consent decree (see Exhibit A to Callahan).ⁱⁱ A photo of the Fort Washington Armory in Manhattan,3⁴ reveals where upwards of 1,000 homeless men were sheltered at a time, providing quarters that were not exactly sterile.

Congregate shelters were natural laboratories for the opportunistic infec­tions such as pneumocystis carini pneumonia (PCP), caused by a relatively common airborne fungus, which was one of the leading causes of death. Prior to the advent of antiretroviral drugs to treat HIV, it was estimated that ap­proximately 75 percent of those who were HIV positive would get PCP. On top of the stressors that come from homelessness in general, the chaos of living with hundreds of others on a drill floor, coupled with the body's com­promised immune system (a primary characteristic of HIV), would lead to an HIV positive person having a very difficult time fighting off such an infection. Death from an infection was not an uncommon result.

Unlike the mentally ill, however, there were no real specific statutory pro­tections for the HIV population at the time. What legal remedies there were, though, were usually around things like privacy issues and discrimination, but there was no comprehensive scheme designed to offer substantive ser­vices. In fact, while New York City did provide may social services, and even had its own governmental unit serving persons with HIV,³⁵ the adequacy of those services was often criticized. The ACT UP! movement grew out of this very critique, and Larry Kramer won a Pulitzer Prize for his play The Normal Heart that focused on Mayor Koch's early record on AIDS.

Those of us at the Coalition for the Homeless at the time learned that an­other advocacy group was using Fair Hearings (see note 36 for a definition) to establish that individuals with sickle cell anemia were entitled to “medically appropriate housing” (i.e., noncongregate) options.³⁶ One of the symptoms of sickle cell anemia is a compromised immune system. We surmised but did not know for sure that this was a prelude to seeking Fair Hearings for clients who were HIV positive. Not to be beaten to the punch, the decision was made to find our own clients who were HIV-positive and to seek private accommodations as the remedy. Sadly, the search for potential plaintiff’s was not difficult. To cloak the nature of what we were doing, we did not use the office address on the request. Several clients who were HIV positive sought Fair Hearings, which they attended with a Coalition staff member, and later received favorable outcomes from the hearing officers.

If this seems like a time-intensive and inefficient way to go about helping a population that likely numbered in the thousands, there was in actuality a more ambitious plan. One of the quirks of New York law is that the de­termination by the agency's agents is given credence in determining rights. In other words, the plan was to have the Fair Hearing determinations serve as evidence in a class-action lawsuit that the city itself (by virtue of the Fair Hearing officers) determined that private accommodations were appropriate for individuals with compromised immune systems.

The resulting lawsuit, Mixon v. Grinker, began with a request for a pre­liminary injunction, which was granted by the trial judge, and the named plaintiffs were given the requested remedy/⁷ The city made the distinction between those with AIDS and those who were HIV positive. As Justice Ed­ward Lehner noted in his opinion:

Prior to the institution of this action the City had adopted a policy of providing individuals diagnosed as having [the federal Centers for Disease Control, or CDC] defined AIDS with individual housing units or granting rent subsidies. Although recently, under State Department of Social Services regulations, all public assistance recipients who have an HIV related disease have been declared eligible for rent subsidies, they are not entitled to other benefits, which include individual housing and a cash allowance for nutrition and transportation ex­penses, unless their condition constitutes AIDS under the CDC definition.³⁸

To deal with the HIV-positive (but non-AIDS) population and other frail homeless individuals, the city, “apparently as a result of the institution of [the] suit,” as Justice Lehner noted, created dormitory-style facilities with no more than twelve individuals to a room. In a decision that one might say harkens back to Justice Lehner's days as a politician (he had been a long-serving mem­ber of the New York State Assembly), he wrote:

I conclude that under the circumstances it would be irrational to place more than four persons of the plaintiff class in one room, whether it be in the [the state ap­proved the Comprehensive Care Program, i.e., one with the twelve-bed limit] or other facility. Further, beds in the room should never be less than eight feet apart. Crucial to the appropriateness of such living arrangements is that the ventilation be adequate for the medical needs of the residents. Since I am unable to state any rules for determining such adequacy, the judgment to be settled hereon should order that the housing to be provided to plaintiffs contain adequate ventilation, with the adequacy to be certified by the City Commissioner of Health, employing recognized standards appropriate to the illness of the residents. Finally, arrange­ments should be made for persons in the program to have the option to eat and have bathroom facilities separate from the general population of the facility.

That decision was affirmed on appeal, but the Court of Appeals distinguished it from its holding in McCain:

In explaining its holding, the [McCain] Court was careful to differentiate be­tween [the trial court's] equitable authority to craft standards of minimal habit­ability, which is an extraordinary judicial task reserved for a situation when no departmental guidelines exist, and [the trial court's] authority to ensure com­pliance with the governing standards, which would always be proper.

In this case, by contrast to McCain, the City has implemented a compre­hensive program, formulated with input from public health experts includ­ing the director of the AIDS Institute, for housing HIV-ill and other medi­cally frail individuals. Under these circumstances, McCain does not confer upon plaintiffs the right to plenary judicial review of the merits of this special medical needs housing program embodied in departmental guidelines (cf., Matter of New York State Socy. of Surgeons v Axelrod, 77 N.Y.2d 677).³⁹

As in Klostermann, Heard, and Koskinas, the ultimate written opinion in Mixon is not a clear-cut victory. But the pressure from the lawsuit, even to a casual observer, forced the government to provide more extensive services than it would have if left to its own devices. The breakthrough antiretrovi­ral drug azidothymidine (commonly known as AZT), approved by the US Food and Drug Administration on March 20, 1987, and in wide use by the early 1990s,⁴⁰ helped dramatically to stem the tide of AIDS and AIDS-related conditions.

With the Callahan through Mixon cases creating substantive rights seem­ingly out of thin statutory and regulatory bases and some very successful use of the media, one would think that it was just the beginning of a long run of litigatory successes. Rather, it's fair to say that this was the pinnacle, that Mixon may have been the last, and that since then major, broad impacts in homeless rights litigation in New York have been rare. There are several rea­sons, I think, for this. First, the cases filed after Callahan and into the early 1990s dealt with many of the large issues that were capable of being litigated. After that, short of trying to secure housing as a right (which is a dead end in litigation), many of the open “impact” issues were on the periphery. Second, even at the time, advocates at the Coalition got the sense that public fatigue was beginning to set in. The city and state were spending billions, and the problem seemed to get worse. Third and similarly, there was a sense that the state judiciary was less willing to issue broad, sweeping victories. With victo­ries in hand came responsibility for ensuring implementation, which is in and of itself a very large task and one that put a damper on taking on additional cases. The city finally settled the McCain litigation after twenty-five years?¹ Yet the Callahan litigation continues, with eligibility screening and ejection issues continuing more than forty years after the case was filed. Despite the oxymoron of a crisis entering (at least) its fortieth year, there are several take­aways from the height of the litigation period that are of general application to crisis lawyering:

How Do You Characterize Your Agenda?

Most homelessness litigation didn't really have another side. Rather, it was a battle for securing resources. Few would argue that litigating on behalf of homeless children is more difficult than defending the right of Nazis wanting to march in Skokie, Illinois. (Of course, just because someone is less sympa­thetic does not mean you don't take on the case.)

Litigating on behalf of certain populations can change the amount of input the clients have. If your clients are a bunch of university professors suing for tenure, they are likely to be fairly sophisticated even if they are not experts on labor law. By contrast, you can't ask a homeless child about how to write the statute and regulations on where they attend school. In cases such as the lat­ter, lawyers have to be much more careful that they are not substituting their biases for what is in the best interest of their clients. If you represent both an organization and an individual, how do you handle a settlement offer that might be good for the individual but might not be good for the organization or future clients?

Still, you can decide on how broad (or narrow) you want your representa­tion to be. Do you only take the large substantive cases? Do you only take in­dividual cases? Do you take cases involving ancillary but important symbolic issues? There are no right answers to these questions, but mission confusion can undermine organizational clarity.

Getting Started: What Factors Should You Consider?

The optimal time to bring a lawsuit borne of crisis will oftentimes be unclear. (If your client is at the airport about to be deported the only answer as to when to start is “now.”) But if true emergency is not the case, you may be able to strike while the iron is hot.

While you may have groundwork to do (remember, Brown v. Board of Edu­cation was not the first case on the docket), you have to guesstimate when to make your big move. Similarly, while we often used the preliminary injunction as a fast way of getting a favorable ruling, you can't wait too long and then claim irreparable harm. The perfect plaintiff, the perfect brief, and the perfect media campaign may have to give way to “good enough to get in the courthouse door” at the right time. Some things are more achievable in a crisis situation, when the public's attention is galvanized and there is sympathy toward the afflicted party, but you still have to frame the issue: “Better shelter for homeless children” is a good short-term rallying cry. “Build more housing” is not.

Also, how do you (or your organization) position yourself (or itself)? Are you an outsider or an insider? Litigation by its nature is adversarial. But even then, some litigators are more part of the system than others. There isn't nec­essarily a correct answer, but it does help establish your identity. It would come as a surprise to many that the Coalition for the Homeless, even during times when it was its most aggressive in the courts, was also the recipient of New York City funds for programs, such as a food program (for people on the streets) and the summer camp (for homeless children). So while the litigation was adversarial, and the implication was that government officials could do more, we tried to avoid the politics of ad hominem attacks.

Finally, there are the brass tacks of initiating any litigation. You may have a choice on venue. The late 1980s, for example, was a time with an increas­ingly conservative federal judiciary. In contrast, New York State laws, and its judges, were not. It is not that we didn't know where the federal courts were located—it's just that we thought we would get a more sympathetic hearing in state court. Important in the Callahan trial, for instance, was the fact that, in New York State, reputation is an exception to the hearsay doctrine. That testimony—included compelling testimonial evidence that the city's existing shelters were inhumane—is considered one of the reasons the city chose to enter into the consent decree.

It is not a coincidence that some of the same judges heard many of the cases. In New York, most cases are assigned by a lottery system. But if you have a related case, you can request the same judge. That does not mean that every decision by that judge is a foregone conclusion. Recall that Jus­tice Lehner's decision in Mixon also was reversed on organizational standing. Similarly, a decision on discovery in Heard agreed with the city and state's position that psychiatric records did not have to be turned over, but that too was largely reversed.⁴² At the later trial, those records were key in establishing the factual basis for the city's noncompliance. Rather, having the same judge can mean that you have someone who understands the issues, which Justice Lehner, for example, certainly did.

What Strategic Partnerships Can You Form?

Odds are your legal issues will overlap with those of other lawyers pursuing the same or similar ones. Very rarely will you be the only one in the space. Do you collaborate? Do you avoid others?4³ Again, no right answer here, but it's best to pick a method.

Perhaps you have the resources to go it alone. Yet nearly all the major law­suits mentioned in this chapter had cocounsel from large corporate firms. While balancing competing needs (e.g., firms want their associates to gain experience), it is inarguable that the firms had legal research and document production and management capabilities that far exceeded ours.

Then there are the insiders. It is not a surprise that those of us on the plaintiffs' side had allies within the administrations we were suing. We did receive memos that were not intended for us to see that were helpful.44 Those sympathetic insiders were also helpful in framing the issues (fairly, but to our advantage) to their superiors.

Complementary programs—your own or with other partners—can help. The Coalition also ran or supported a set of direct service programs, such as three single-room occupancy buildings it was awarded as part of the sentence in a criminal proceeding against the landlords,⁴⁵ many of which survive to this date. Not only did the programs provide benefits to their recipients, but they helped demonstrate that the remedies sought in litigation were possible. And they were often possible and better run and less expensive than the city's claims.4⁶

Lastly, there are unofficial partnerships, most notably the media and elected officials. All lawyering can benefit from favorable public opinion. How that public opinion is formed, and what it favors, are generally more helpful if you're the one doing the framing. Likewise, politicians might be able to deliver the victory you want. Just because you don't get a clear judicial victory doesn't mean you haven't been successful as a lawyer if your work led to an uncredited legislative fix.

Are You Litigating Effectively?

A crisis is not an excuse to think only one step at a time. As with a good chess player, you have to think several steps ahead.

It is not always necessary—or advisable—to bring the “ultimate” case first. As one can tell from the description of homeless litigation, the cases built off of each other. Sometimes the groundwork was fairly large in scope, such as the justiciability victory in Klostermann. Other times it was as simple as knowing how to use Fair Hearings to establish a factual basis for relief. This is nothing new. Perhaps the most famous example is Brown v. Board of Educa­tion. Brown was not only a consolidation of five cases from around the coun­try; it was also the culmination of years of precursor cases that set the stage. Neither was Brown the final word, as decades of cases have been brought since to implement and enforce its ruling.

Nor is it true that every claim has to be dealt with at once in an omnibus lawsuit. It would be easy to have concluded that discharges from hospitals are the main point of attack. In the wake of Heard, however, we got the sense that one way the city and state were dealing with pressure on discharge was to make admissions even more difficult. We met individuals who, for instance, ate broken glass without being admitted to an acute psychiatric ward, and we also met persons who could spend days on a gurney in a hospital hallway before getting a bed. Clearly there was pressure on admissions. Accordingly, the Coalition brought the related case of Love v. Koch, which sought appropri­ate care and treatment, including in-patient treatment when warranted. Not only would they be better cared for; once admitted, they would be ensured of a residential placement.

Have more than one plaintiff with more than one set of circumstances; you never know what set of facts will appeal to a particular court. And be pre­pared for rounds of interlocutory appeals as the case bounces back and forth.

Timing is another issue to factor. Crises can make it more difficult to plot out a desired timeline. But that does not mean that there are no time factors that can be considered. A relatively simple one we used, for example, was never to file a case on a Friday, since Saturday's newspaper is less widely read.

Unintended consequences can vex any litigation. If one could use the “way back machine” to revisit Callahan, it would be a long line. Mayor Koch regret­ted settling, and the plaintiffs' counsel certainly would have included a host of other items in the settlement—such as capping the size of the shelter—had he known how things would unfold. Callahan is frequently criticized for the shelter system that followed it. Particularly for cases of first impression, pre­dicting the future is not an easy task.⁴⁷

What Are Your Remedies?

Balancing short-term and long-term goals can be difficult. Are you trying to change the outcome for a single client, or perhaps for a small cohort, or are you trying to change the world?

If you are in an advocacy organization and are about to undertake a mul­tiyear litigation strategy, decide if you can also help your clients with their short-term needs. As the appellate division noted in Mixon, the Coalition provided funding to named plaintiff Wayne Phillips?⁸ While such support was important in establishing organizational standing (and did not result in a mootness claim, as the claim certainly was capable of repetition yet evading review), it was also the right thing to do. It is very difficult for a lawyer to tell a person in crisis to wait five years as the case winds its way through the court system. It is even more difficult for the person in crisis to hear that.

You can also choose to stay on a certain path, or you can allow yourself to address issues as they unfold. I worked with a lot of clever individuals, and we would often brainstorm ideas. If we collectively thought an idea was worth pursuing, we invariably did the legal research. For instance, New York City at various times auctions in rem properties on the open market. These sales come with an obligation to repair the property. We learned an important fact from a colleague who simply wondered about—and then researched—the backstory of a seemingly abandoned property that he saw in his neighbor­hood. It had been sold at auction, but the required repairs had not been made, leading to continued disrepair instead of adding to the city's housing stock. Our legal research concluded that the only litigatory method was a taxpayer lawsuit, but unfortunately that was not an easy path in New York State. In­stead, we issued a report, which garnered a fair amount of local attention. It may not have helped, but it certainly didn't hurt.

When Is the Crisis Over?

There's an old joke about a lawyer representing a man convicted of a crime. After the verdict is handed down, the defendant asks his attorney: “Where do we go from here?” The defense lawyer responds, “You go to jail, I go back to my office.” All of us who worked with homeless people at the time I did were acutely aware that, at the end of the day, we went home. Our clients were generally not that fortunate. That dissonance not only helped drive our work; it also helped us to understand a bit better the predicament our clients were in. If they were late for a meeting, we waited. If they had no shoes, we dipped into petty cash to buy them some.

As noted above, litigation is rarely a straight line. Cases bounce up and down from trial courts to appellate courts and back. Issues get narrowed as cases progress. Other issues get identified in the course of litigation. Some of them will be the result of things that you notice in your work. For example, homeless people were not allowed to vote, because you needed an address to vote. In Pitts v. Black, the argument that a post office box was sufficient to establish residency for voting purposes was accepted by the court. No one knows if that victory has even changed the outcome of any election, but for symbolic and basic human decency purposes, it was an important right to es­tablish. Some side issues are more than symbolic. As provided in the Callahan consent decree, the plaintiffs' attorneys retained an ongoing monitoring func­tion. Over many years, significant resources were expended to ensure that the city was living up to its (arguably scant) set of standards. Several times, the city attempted to have the court reopen the settlement. In short, it is safe to assume that nothing is ever “settled.” But how you balance your work between chronic versus crisis and large versus small applicability is important.

Most on point: When do you call it a day? Is it when no one is living on the street or in shelters? Or is it when the problem is “manageable”? It's fairly easy to say, “Our mission is obsolescence.” Realistically, many crises are not over in the short term. Physical infrastructure may be built, but the legacy issues (such as psychological impacts) can linger. Dr. Ellen Bassuk, who worked at Harvard Medical School for more than three decades, is a leading voice on the sustained trauma that homelessness has on children, even after they be­come formerly homeless.

Finally, remember that litigation is only one of the tools. For many years, the notion that homelessness was only, or mostly, a housing problem was in disfavor. Government officials seemed to use the argument as a cudgel—that since the needy needed so much, they shouldn't get anything. Or that provid­ing them with housing won't solve all their problems, so there's no need to do that. Skip ahead a few decades, and one finds the Housing First! model, which is characterized as follows:

Housing First is an approach to quickly and successfully connect individuals and families experiencing homelessness to permanent housing without precon­ditions and barriers to entry, such as sobriety, treatment or service participation requirements. Supportive services are offered to maximize housing stability and prevent returns to homelessness as opposed to addressing predetermined treat­ment goals prior to permanent housing entry.⁴⁹

Forty years after Callahan, after countless therapeutic models, we are back to recognizing that homelessness should be a short-term condition that can be addressed by providing sufficient low-cost housing. And if that was not exactly the original intent of Callahan v. Carey, it definitely was the intent of its progeny.

NOTES

1 I have chosen to focus on those cases and events with which I'm more personally familiar. That does not mean, for example, that the cases discussed here are the only important ones, although they are all significant. But it is certainly easier to provide insight into strategy on things I more closely worked on or witnessed.

2 The most widely accepted definition of a homeless person is one “who lacks a fixed, regular, and adequate nighttime residence.” U.S. Department of Housing and Urban Development, Office of Community Planning and Development, The 2017 Annual Homeless Assessment Report (AHAR) to Congress 2 (Dec. 2017) (hereinafter “HUD Report”).

3 A popular count used is the United States Department of Housing and Urban Development's snapshot homelessness census, cited in the HUD Report. The 2017 report states, for example: “On a single night in 2017, 553,742 people were experiencing homelessness in the United States.” Id., at 2. But most experts note that multiples of that figure experience homelessness during a year; see www. nationalhomeless.org.

4 For example, in many cities there is a lack of affordable housing. In others, there is sufficient inventory but wages are not high enough to afford even that.

During the nineteenth century and Victorian era, conceptions of who was responsible for the mentally ill shifted from the individual to society, precipitating the asylum movement.

See Jacqb Riis, How the Other Half Lives: Studies among the Tenements of New York (1890), an important example of bringing public attention to the underclass.

See Noel King, Behind New York’s Right to Shelter Policy, Marketplace (Sep. 30, 2015), www.marketplace.org.

Callahan v. Carey, Index no. 42582/79 (Sup. Ct. N.Y. Co. 1981). A notable precursor to Callahan was the seminal Supreme Court decision in Papachristou v. City of Jacksonville, 456 U.S. 156 (1972), which dealt with a vagrancy ordinance. While Papachristou did not seek to accord any substantive benefits, it did successfully shield “[r]ogues and vagabonds, or dissolute persons who go about begging... persons who use juggling or unlawful games or plays... common night walkers... common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, [and] habitual loafers” from criminal prosecution as vagrants.

This street being the one to give rise to the phrase “Bowery Bum.”

An amended complaint was filed on March 31, 1980.

Due to a quirk of New York law commonly known as the “government exception doctrine,” suits plead for class-action status, but it is seldom granted, on the theory that government is benign and of course will treat similarly situated people the same way.

411 U.S. 1 (1973).

397 U.S. 254 (1970).

It should not be surprising that this provision was the result of a Depression-era state constitutional convention (New York State Constitutional Convention of 1938) and approved by popular vote on November 8, 1938.

The requirements are: (a) Each resident shall receive a bed of a minimum of 30 inches in width, substantially constructed, in good repair and equipped with clean springs. (b) Each bed shall be equipped with both a clean, comfortable, well- constructed mattress standard in size for the bed and a clean, comfortable pillow of average size. (c) Each resident shall receive two clean sheets, a clean blanket, a clean pillow case, a clean towel, soap and toilet tissue. A complete change of bed linens and towels will be made for each new resident and at least once a week and more often as needed on an individual basis. (d) Each resident shall receive a lockable storage unit. (e) Laundry services shall be available to each resident not less than twice a week. (f) A staff attendant to resident ratio of at least 2 percent shall be maintained in each shelter facility at all times. (g) A staff attendant trained in first aid shall be on duty in each shelter facility at all times. (h) A minimum of ten hours per week of group recreation shall be available for each resident at each shelter facility. (i) Residents shall be permitted to leave and to return to shelter facilities at reasonable hours and without hindrance. (j)

Residents of shelter facilities shall be provided transportation (public or private) to enable them to return to the site where they applied for shelter. (k) Residents of shelter facilities shall be permitted to leave the facility by 7 a.m. if they so desire. (l) Residents shall be permitted to receive and send mail and other correspon­dence without interception or interference. (m) The City defendants shall make a good faith effort to provide pay telephones for use by the residents at each shelter facility. The City defendants shall bear any reasonable cost for the installation and maintenance of such telephones.

In the appendix are standards such as the spacing of the beds and the ratio of toilets and sinks (6 to 1) and showers of bathtubs (10 to 1) to shelter residents.

16 Out of those dozen pages grew an enormous municipal agency (the New York City Department of Homeless Services) that today has an annual operating budget that exceeds $1.29 billion.

17 One word on nomenclature: generally speaking, in New York State, the Supreme Court is a general trial court, with the Appellate Division (split into one four regions) as the first appellate court; the single Court of Appeals sitting in Albany is the state's highest court.

18 Eldredge was brought to extend Callahan to women. McCain was brought to extend Callahan and Eldredge to families. Without spending too much time editorializing, the fact that separate cases had to be brought on equal protection grounds is a fairly good indication of how aggressively the government litigated these cases.

19 Two other subpopulations included youth in foster care (Palmer v. Cuomo) and children in danger of being placed into foster care (Grant v. Cuomo). Palmer was brought by a group of homeless young people under the age of 21 dis­charged from foster care onto the streets. The plaintiffs sought care until age 21 and the education and training while in foster care that they would need to live independently. In granting a preliminary injunction to plaintiffs in July 1985, the court held that foster children are entitled to care until age 21 and to “career counseling and training in a marketable skill or trade.” The Appellate Division affirmed that ruling. New York State subsequently issued regulations defining this responsibility. Grant sought to require New York City to provide basic protective (reports of suspected incidents of child abuse or neglect to be investigated within 24 hours) and preventive (actual delivery of City-identified support services) services to needy children. Ultimately, the Court of Appeals decided that protective services were required to be timely but that the defendants were not statutorily required to provide preventive services (73 N.Y.2d 820 (1988)).

20 Initially, the focus primarily was on the mental illness aspect of the population. Later, as more became known about the population, the focus was expanded to include those who were mentally ill and had a chemical dependency (either drugs or alcohol—Mentally Ill Chemical Abusers (MICAs), in the vernacular of the time, later known as Dually Diagnosed).

21 Oftentimes, critics would add up the percentages (e.g., 33 percent mentally ill and 40 percent alcoholics gets to 73 percent with serious drinking or mental prob­lems) without realizing that there is great overlap among the subgroups.

22 One cliche was “Greyhound Therapy”—providing a discharged psychiatric with a bus ticket to someplace else.

23 Institutionalization in state hospitals in New York topped out at about 93,000 in 1955 when the first psychotropic drugs were introduced; today the adult inpatient population in New York State hovers around 10,000. The deinstitutionalization movement was a product of many factors, including: (i) litigation that required the least restrictive alternative (see, e.g., Covington v. Harris, 419 F.2d 617, at 623 (1969)); (ii) governmental desire to save money; and (iii) a movement toward care in the community (the Community Mental Health Act of 1963, also known as the Community Mental Health Centers Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, was to provide federal funding for community mental health centers and research facilities in the United States), and the utility of psychotropic medications, the inpatient population dropped steadily. As with many good ideas, the initial part happened (deinstitu­tionalization), but not the replacement (community mental health centers). Looking at the numbers, the major drops in inpatient populations began in 1955 with the introduction of psychotropic medications and picked up stream in 1965 when Medicare and Medicaid were enacted.

24 New York Mental Hygiene Law, § 29.15, subd (g), par 2.

25 The Klostermann named plaintiffs and putative class were all homeless individuals

who had been discharged without a residential placement. As part of its decision in Klostermann, the New York Court of Appeals also found justiciable claims in Joanne S. v. Carey, in which New York State's Mental Hygiene Legal Service—a unit within the Appellate Division of the New York State Supreme Court—had represented current residents of state psychiatric facilities who were seeking clinically appropriate community placements.

26 Recognizing how many former state hospital patients ended up on the streets, section 29.15(j) ordered the commissioner of the New York State Office of Mental Health to try and locate those who had been inpatients for at least two years and had been discharged after 1972 without a written service plan and to seek to have services provided for that population.

27 126 Misc.2d 247 (1984).

28 Complicating matters, at least in the public's eyes, on October 18, 1987, Mayor Ed Koch instituted a program to forcibly remove mentally ill people from the streets if they were unable to care for themselves. While the initiative spoke in terms of danger to one's self or others (the legal basis for involuntarily hospitalization), the endeavor soon took on a carnival-like feeling. The first person picked up by Project HELP was a middle-aged woman named Joyce Brown, who also went by the name Billie Boggs, a nod to her favorite daytime talk-show host, Bill Boggs. Whether she was a real danger to herself or not (she claimed she was a “political

prisoner”), the courts soon released her; the underlying problem was that the city was allocating a few resources to this initiative but not really addressing the problem for the thousands of others who would have gladly taken assistance had it been available.

The program has been renewed twice more under different city and state administrations. It is without a doubt a success, having helped thousands of mentally ill individuals get off of and/or stay off the streets and out of congregate shelters.

150 Misc.2d 257, 264-65 (1991).

179 A.D.2d 429 (1992)

80 N.Y.2d 684, 610 N.E.2d 348, 594 N.Y.S.2d 675 (1993).

On file with the author.

See www.nytsyn.com/archives/photos/751308.html.

Within the Human Resources Administration, the City's general welfare agency, there was the Medical Assistance System-Division of AIDS Services, commonly known as MAP DAS.

“Fair Hearing” is the name given to the administrative procedure that is used to determine entitlement to many public benefits. The term is derived from Goldberg v. Kelly, which found that welfare benefits are “property” within the meaning of the Fourteenth Amendment to the United States Constitution and that they could not be terminated without some form of evidentiary hearing.

There are two New York specific elements that are worth noting. First, the court also granted the city's request to dismiss the Coalition as a named plaintiff on the grounds that it lacked standing. But that dismissal was unanimously reversed on appeal. 157 A.D.2d 423 (1990). Organizational standing is a powerful tool in impact litigation. Not only can it make bringing the lawsuit easier; it can also serve as a central organizing tool for the organization.

Second, a well-settled (and vexing) aspect of New York law is the governmental exception doctrine to class actions. Plaintiffs can plead a class action, but the court will not certify the class because, the theory goes, that government is benign and, once the named plaintiff is granted the remedy, the government will, of course, treat similarly situated individuals the same away. McCain v Koch, 117 A.D.2d 198, 221 (1st Dept 1986) (reversed on other grounds), 70 N.Y.2d 109, 114, n.2 (1987). Only after one has proven that similarly situated individuals (which is a matter to be adjudicated) have not in fact been treated the same way would a class be certified. While this pas de deux would seem to be a relatively minor inconvenience, it can add substantial time and effort to legal redress. And because this book is dealing with situations that are crises, that is not the type of time that counsel desires to spend.

157 Misc.2d 68 (1993).

88 N.Y.2d 907 (1996).

AZT was developed more than two decades earlier as a cancer drug.

41 New York City, Office of the Mayor, Mayor Bloomberg Announces Statement With Legal Aid Socity Ending 25-Year Litigation and Court Oversight of Homeless Family Services System (Sept. 17, 2008), www1.nyc.gov.

42 142 A.D.2d 537 (1988).

43 About Robert Hayes, it was said: “Among his fellow advocates, Mr. Hayes has developed a reputation for having sharp elbows. He has intervened in their lawsuits when he thought they were going poorly and sought to have some lawyers removed from cases if they disagreed with him.” Suzanne M. Daley, Robert Hayes: Anatomy of a Crusader, N.Y. Times (Oct. 2, 1987).

44 In one rather humorous exchange, city lawyers were practically apoplectic during a deposition, as they could tell we were reading from the deponent’s resume, which they had not sent us. (Why they thought this was a secret document was lost on me.) During the break, my colleague asked where I got it from. I replied: “They attached it to his affidavit in the other case.”

45 130 Misc.2d 987 (1985).

46 Terrence McNally (the screenwriter, not the playwright of the same name) calls this “change the story, change the world.”

47 One unintended consequence, it can reasonably be argued, was a major positive. To comply with the right-to-shelter cases, the city relied on “welfare hotels,” which were often tourist-class hotels that had fallen into disrepair. Paying upward of $3,000 per month for a family (in 1980s dollars) allowed advocates to show the sharp contrast in the economics of shelters versus permanent housing. This would lead New York City to spend billions of its own tax dollars to create affordable housing, including rehabilitating thousands dilapidated city in rem buildings; many of these had tin panels in the windows with painted flower pots so that passing motorists would having something better to look at. While Mayor Ed Koch would not admit that litigation was an impetus, the rehabilitation of thousands of city-owned buildings that were once slated for demolition as albatrosses was a major contributor to the revitalization of many neighborhoods. As Mayor Ed Koch often bragged: “In fiscal year 1989 alone... New York City spent $740 million in capital funds—more than three and one half times the amount of the local funds expended on housing by the nation’s next 50 largest cities combined!”

48 157 A.D.2d 423 (1990).

49 U.S. Department of Housing and Urban Development, Housing First in Permanent Supportive Housing, www.hudexchange.info.

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