A Manhattan judge has thrown out a controversial new process for determining the eligibility of single homeless adults for temporary admission to New York City shelters. The Department of Homeless Services announced the eligibility requirements on Nov. 4 for implementation on Nov. 14. Among other things, applicants would be required to prove they had no other place to go before entering a shelter. The City Council and other opponents immediately went to court, arguing that what they characterized as a “shelter denial plan” violated a 1981 consent degree.

Ruling on two companion cases, Supreme Court Justice Judith Gische (See Profile) did not reach that question, but she nevertheless declared the new policy a “nullity” because it had not been vetted by an “express, rigorous procedure”—including publication and public hearings—city agencies must follow in enacting new rules. Finding that the new process would limit agency discretion and dictate certain outcomes, Justice Gische found that it fell under the definition of a “rule” in the City Administrative Procedure Act. She disagreed with the city that the requirements represented only “strict interpretations” of existing state rules and regulations. The cases are Council v. Department of Homeless Services, 403151-11, and Callahan v. Carey, 42582/79.

Homeless Services Commissioner Seth Diamond said in a statement that the city would appeal. Moreover, he said that “Judge Gische’s disappointing decision does not undermine the city’s strong reasons for developing this common sense procedure, nor does it make any determinations about its legality other than ruling on the method used to issue it.”

But Steven Banks, attorney-in-chief of the Legal Aid Society, which represented the Callahan plaintiffs and the Coalition for the Homeless, called the city’s approach “a textbook case in arbitrary government.” He said the city’s own figures showed that 2,000 people would be denied assistance under the plan, a 10 percent decline representing a “sea change” in the city’s policy toward the homeless. Wilmer Cutler Pickering Hale and Dorr served as pro bono co-counsel with Legal Aid.