New Jerseyans have no constitutional right to shelter , an appeals court ruled yesterday in a case involving a dozen homeless men who were forced out of a New Brunswick shelter when it closed for lack of funds.

Yesterday's terse ruling, the first in the state on the " right - to - shelter " issue, dismayed advocates for the homeless. "There is neither a federal nor state constitutional right to shelter ," the judges wrote.

Harris David, an attorney for Legal Aid of New Jersey, which represented the dozen men some of whom were later arrested and jailed for sleeping in an abandoned building said they would appeal the case to the New Jersey Supreme Court. David said he was optimistic for success there, noting that in other decisions the high court has maintained that housing is a basic human need.

"The Supreme Court has never said that there's a right to emergency shelter , but it has said that housing is an absolute essential," said David. He quoted the court's Mount Laurel I decision striking down exclusionary zoning laws:

"There cannot be the slightest doubt that shelter along with food are the basic human needs. . . . It is plain without dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of general welfare. "

"There's no reasoning," said David Sciarra, the assistant public advocate who is handling a similar case involving homeless families in Atlantic City. "It's a one-paragraph decision saying the previous decision was valid. Then in one sentence, the court says there's no constitutional right to shelter and drops it. "

Calls panel "hostile"

Sciarra noted that the appeals panel, headed by Judge Morton I. Greenberg, heard arguments in the case last Monday in Hackensack and filed its unanimous decision four days later. "Obviously, the panel was hostile," he said, referring to the quick decision.

Public-interest lawyers say the state Supreme Court may consolidate several of the " right - to - shelter " cases for a ruling on the constitutional issue.

Yesterday's decision upheld the state Department of Human Services so-called "fault standard," under which emergency assistance is denied to individuals the department believes were partly responsible for their homelessness.

In May, the New Brunswick Welfare Department, applying state guidelines, denied emergency assistance to homeless men when the Ozanam Shelter , operated by Catholic Charities, closed for the summer after its money ran out. The shelter had closed for the same reason in each of the previous three years.

"These men were on general assistance grants giving them $93 a month to meet their needs. Where were they supposed to go? " asked David, who appealed the welfare department's ruling in two court actions. David noted in the suit that rooms in the New Brunswick area average between $60 and $75 a week.

In the first case, Administrative Law Judge Bernard Goldberg agreed that eight of the men "had no opportunity to prevent their imminent homelessness through advanced planning" and ordered that they receive emergency assistance at public expense usually a hotel or motel room for no more than 90 days. He noted that the eight had searched diligently for jobs and shelter in the New Brunswick area, but without success.

But Audrey Harris, director of the state Division of Public Welfare, overturned the judge's decision, saying that no "emergency" existed because the homeless men should have known that the Catholic-run shelter was going to close for the summer and should have made other plans.

Ms. Harris, who could not be reached for comment yesterday, said in her ruling that the division needs to conserve scarce funds for "circumstances which are strictly unavoidable. " She also said the lack of housing in the New Brunswick area had no bearing on the case, and that the men should have looked elsewhere.

Ms. Harris also rejected the second case, filed on behalf of four other men from the Ozanam Shelter .

In a joint ruling on the two cases, the Appellate Division of Superior Court panel yesterday upheld her discretion in applying the fault standard, which Sciarra and David say has no statutory basis.

Advocates for the homeless have attacked the department's use of the fault standard as an often-arbitrary way of deciding which of the homeless to help when state funding levels are too low to give emergency assistance to all.

"The state is blaming people for their homelessness, despite studies that show that welfare levels aren't high enough to enable the poor to obtain housing," said Karen Olsen, coordinator of the Interfaith Council for the Homeless in Union County. "Massachusetts and New York don't have fault standards. But here in New Jersey, we turn away the homeless to live in vans and cars. "