Tish James’ office won’t defend Hochul in migrant case in ‘extremely rare’ split

New York Attorney General Letitia James’s office dropped its role Thursday defending the Hochul administration in litigation over the state’s responsibility to shelter migrants, a highly unusual step that appeared to suggest policy differences between two of the state’s most powerful Democrats.

The Manhattan law firm Selendy Gay Elsberg has replaced James’ legal team in the case, according to a filing in Manhattan Supreme Court. The move came in a case centered on the city’s right-to-shelter mandate established in 1981, which mandates the city provide shelter to anyone who requests it.

Mayor Adams’ administration has struggled to meet the requirements of the provision over the last year, with the city strained by the arrival of about 100,000 asylum seekers. The Legal Aid Society has asserted the state must do more to help the city.

Gov. Hochul, a Buffalo Democrat, has in turn argued that the right-to-shelter rule only applies to the five boroughs. Delaney Kempner, a spokeswoman for the attorney general’s office, declined to comment on the decision to drop from the case.

But the decision by James — first reported by Politico — raised eyebrows. It’s uncommon for the attorney general’s office — which typically serves as the state’s lawyer — to withdraw from representing the state in a case, and even more so without an explanation.

“It’s extremely rare,” said Mark Peters, a former commissioner for the city Department of Investigation who worked in multiple roles in the attorney general’s office in the early 2000s and now leads the firm Peters Brovner LLP.

And Steven Cohen, who served as chief of staff in then-Attorney General Andrew Cuomo’s office, said in a text message that New York attorney generals do not decline their role as lawyer for the state except “when there is an institutional conflict that cannot be reconciled or there is a fundamental and meaningful policy conflict.”

Cohen added that the attorney general “doesn’t step away in favor of a private law firm for no-good reason.”

In 2017, the attorney general’s office under Eric Schneiderman withdrew from representing his predecessor and then-Gov. Cuomo in two federal civil rights cases after New York appeared to jeopardize a settlement giving people with mental illness the chance to leave institutions and reenter the community, citing disagreements about how to handle the case.

At a news conference in Albany Thursday, Hochul downplayed the shift in the migrant case, presenting the change as a consequence of the complicated nature of the litigation.

“It’s not uncommon for outside counsel to be brought in,” said Hochul, herself a lawyer. “This is going to come down to a very sophisticated constitutional question. We’ve brought in outside constitutional experts to assist with managing this.”

Hochul said her office could offer other examples of the attorney general’s office not representing the state, but the governor’s office did not immediately provide them.

The governor added that she was “convinced” that the “state is not a party” to the civil settlement that orders New York City to provide shelter to anyone who needs it.

“The right to shelter does not expand to the whole of the state,” the governor said. “That being said, we are still being very supportive.”

Josh Goldfein, a senior attorney with the Legal Aid Society, which petitioned the court to hold an emergency conference for judicial intervention after migrants languished for days outside the Roosevelt Hotel in Midtown, said Hochul was wrong about the right to shelter.

“The right to shelter derives from the New York State Constitution, and the New York State Constitution applies statewide,” Goldfein said. He said the landmark settlement outlined the right to shelter under Article 17 in the state Constitution.

In 1981, city and state officials signed a compact requiring the city to provide shelter to the homeless. The so-called consent decree stemmed from a Manhattan Supreme Court case, Callahan v. Carey, that began in 1979.

The timing of James’ withdrawal from the current case — an outgrowth of Callahan v. Carey — came immediately after the city’s submission of a court-ordered list of needs to the state to help deal with the migrant crisis. The state has until Aug. 15 to respond.

The city has declined to publicly release the list.

With Michael Gartland