THE MASSACHUSETTS LEGISLATURE has amended the Commonwealth’s “right to shelter” law, limiting the stay of eligible persons in shelters and affirming that the “right” is “subject to appropriation,” that is, funded only to the extent of legislative appropriation, and not more.
In making these changes, the Legislature and governor have preserved a freedom to change policy not enjoyed by New York City officials, who, since 1981, have been bound by a “consent decree”—an order of a New York court entered with the consent of the then-mayor—that requires the city to “provide shelter and board” to eligible “homeless” persons.
The widely different degrees of policy-making freedom in Massachusetts and New York provide a bracing lesson about the dangerous limits on state and local policymaking placed by consented-to judicial decrees.
A consent decree is an order of a federal or state court that adopts a settlement agreement among parties to a court case. The order thus represents both (1) a negotiated private agreement, and (2) a judicial decree enforceable through the court’s power of contempt. Because a consent decree may be entered without an adjudication of the parties’ respective rights and duties, the decree can—and often will—confer greater benefits on the private claimants than they might obtain following full litigation. A consent decree may remain in force for years, despite changes in the conditions that prompted the initial lawsuit, new crises, or changes in views on sound policy.
The rules of most courts do allow officials to ask the court to modify or withdraw its earlier order if there is a significant change in factual conditions or the law underlying the decree. Based on these showings, a court may decide that continued enforcement of the requirements of the consent decree is not in the public interest.
That’s the standard for federal courts that the Supreme Court applied in a 1992 case, Rufo v. Inmates of Suffolk County, involving the double-bunking of inmates at the then-new Suffolk County jail on Nashua Street in Boston. A consent decree had required that the new jail be single-bunked. In the face of rising numbers of incarcerated persons, the sheriff and state officials asked the lower courts to modify the decree. The lower courts declined to do so. The Supreme Court, however, ruled that the lower courts applied too strict a standard to modify the decree. Eventually, state and local officials received judicial approval to double-bunk. But they had to go to the Supreme Court to do it.
Consent decrees remain very difficult to change or end. For example, the Supreme Judicial Court recently affirmed an order of the Probate Court declining to terminate a 1987 consent decree concerning the very controversial use of physical aversives in the treatment of certain persons with developmental disabilities. The court applied the highly-deferential “abuse of discretion” and “clearly erroneous” standards to the findings and conclusions of the Probate Court to continue the decree.
New York consent decree
The Constitution of the State of New York includes a Great Depression-era article concerning aid to the needy. “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 from time to time may determine,” the article states.
The constitution does not define the extent of the state’s obligation, leaving the “manner” and “means” of supplying aid to the legislature. In 1979, in Callahan v. Carey, six homeless plaintiffs sued New York City and the State of New York. They claimed that the city and state had legal obligation to provide shelter to certain homeless persons. In settlement of the claim, the city negotiated a consent decree approved by the state trial court in 1981. The decree required the city (but not the state) to “provide shelter and board to each homeless man who applies for it provided that (a) the man meets the need standard to qualify for the home relief program established in New York state; or (b) the man by reason of physical, mental, or social dysfunction is in need of temporary shelter.”
The decree was extended in 1983 to homeless women and homeless families. The decree imposed no limits on the number of applicants or the availability of city resources necessary to fulfill its terms. State and local statutes and regulations may supplement, but they may not supersede the requirements of the decree absent judicial modification.
The decree established requirements for space devoted in the shelters for sleeping, dining, leisure, bath, and toilet facilities. The decree also established detailed requirements for shelter services, including the size of beds, the condition of mattresses, pillows, and linens, laundry services, time for recreation, and transportation.
The large influx of migrants into New York City in recent years has led city officials to seek judicial relief from some of its duties under the decree. In May, 2023, the city unsuccessfully sought approval to decline shelter when it “lacks the resources and capacity to establish and maintain sufficient shelter sites, staffing, and security to provide safe and appropriate shelter.”
In October 2023, the mayor asked the judge presiding over the decree to suspend its terms when the number of single adults seeking shelter exceeded a certain limit. Mayor Eric Adams’ lawyers argued that the decree’s “onerous terms are demonstrably ill-suited to present circumstances and restrain the city at a time when flexibility to deal with the emergency is paramount. The [decree] — entered over 40 years ago under far different circumstances — has become outmoded and cumbersome in the face of the present migrant crisis.”
In March 2024, after months of negotiation supervised by the judge, the city and the lawyers for the Callahan plaintiffs agreed to modifications of the decree. The court approved a
24-page “Stipulation” that permits City officials to decline to provide shelter to most single adult migrants who have resided in a shelter for 30 days. The amendments—for the first time–allow the city to assess the financial resources and other housing options of applicants for shelter. The amendments are temporary, however: they are effective only until 45 days after the mayor withdraws his order of a “state of emergency.”
Massachusetts is different
The Massachusetts emergency housing assistance program has roots in the “emergency assistance” program enacted in 1983. In 2009, the Legislature placed responsibility for the housing program with the Executive Office of Housing and Livable Communities. The program authorizes temporary emergency assistance shelter “as necessary to alleviate homelessness when such family has no feasible alternative housing available,” for “needy families with children and pregnant women with no other children.”
Crucially, the Legislature has made clear that the program is “subject to appropriation;” it has repeated this limitation in each budgetary line item funding the program. Indeed, in 2023, the Legislature—in an express attempt to foreclose a judicial role in the operation of the program—provided that, “in the event of a deficiency, nothing in this item shall give rise to or shall be construed as giving rise to any enforceable right or entitlement to services in excess of the amounts appropriated in this item.”
Executive and legislative activity continued into the fall and early winter of 2023. Faced with extraordinary demands on the program, the EOHLC filed emergency regulations intended to prioritize eligible household applicants for emergency assistance shelter. In November 2023, the Superior Court denied a request for an injunction against the regulations.
This spring, the Fiscal 2024 supplemental budget enacted by the Legislature and signed by the governor addressed the shelter program in several ways. First, the Legislature appropriated $251 million in additional funds. Second, the Legislature imposed a nine-consecutive-month limit on the length of stays of certain persons in the program. The Legislature created certain “hardship” exceptions that might support a short extension of a stay in a shelter, but made clear that these were exceptions to the rule against indefinite stays. Third, the act imposed on executive branch agencies detailed reporting requirements concerning the program, presumably to inform further legislative appropriation and modification.
These legislative and executive actions—and the decision of the Massachusetts judiciary not to intervene in 2023—show how the Commonwealth has retained democratic control over its shelter policy. A majority vote of the two houses of the Legislature, and the signature of the governor, modified the Massachusetts law. A judicial imprimatur was not necessary. In contrast, in New York, the city, state, and their citizens lack democratic control over the same policy; their previous officeholders have ceded authority over the policy to the New York judiciary.
The weaker position of New York officials underscores the antidemocratic potential of consent decrees that bind state and local governments.
Consent decrees often limit the statutory powers of a mayor or governor granted by the Legislature or Constitution. As in New York, each exercise of discretion conferred on the executive by statutory law may become subject to the approval of the court. The result is a diminution of executive and legislative authority within the policy sphere.
Second, consent decrees may affect future budget decisions. Funds are not infinite. Legislative bodies—state and municipal— exist to make choices among competing public needs. A consent decree may have the effect of re-ordering priorities for legislative appropriations.
Third, consent decrees can distort democratic processes in another way: public officials—though nominally the defendants in a lawsuit—may agree or not strongly oppose a consent decree, in the hope of achieving a policy goal and budgetary support that they could not obtain through normal political channels.
As commentators have dryly put it, public officials who face political and budgetary constraints on their preferred actions may “win by losing” the court case, entering a consent decree that may require an increase in their budgets or dictate a (quietly desired) change in their policies. In such cases, the nominal defendants in the suit may forfeit the prerogatives of the political branches over the policy in question. They may welcome the corresponding expansion of the powers of the judiciary at the expense of the powers of the executive and legislative branches.
Fourth, consent decrees may tempt collusion between advocacy groups and executive officials who wish to bind future mayors, governors, and other policymakers. As the Supreme Court has stated, “States and localities depend on successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. Where officials inherit overbroad or outdated consent decrees that limit their ability to respond to the priorities and concerns of their constituents, they are constrained in their ability to fulfill their duties as democratically elected officials.”
Elections should matter. Successors in office—like New York Mayor Adams—will always confront new, unforeseen crises. Successors may bring fresh views to new crises and old problems. Judicial control of an institution or a public policy may hinder the choices of successor officials and thus frustrate the will of their electorates.
Finally, consent decrees in public law litigation often involve the judicial branch in matters generally left to the expertise of executive branch officials. The protracted litigation and negotiation of changes in the 1981 New York decree demonstrate that the judiciary may not be a body well suited to address a housing crisis caused in part by a rising tide of immigration.
As New York limps on, shackled by an improvident, 40-year-old consent decree, Massachusetts retains the legislative and executive freedom to address its own ongoing crisis. Massachusetts residents—whatever their views of sound future policy—should be thankful for that freedom.
Thomas A. Barnico teaches at Boston College Law School. He is the author of a novel, War College, set in the Vietnam War era.
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