Shannon v. Commissioner of Housing

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SHANNON v. COMMISSIONER OF HOUSING—DISSENT
ESPINOSA, J., dissenting. I respectfully disagree with
the majority’s conclusion that the decision of the defen-
dant, the Commissioner of Housing,1 to terminate rental
assistance provided under a statutory rental assistance
program to the plaintiff, Francis Shannon, on the basis
of § 17b-812-13 (9) of the Regulations of Connecticut
State Agencies was an impermissible retroactive appli-
cation of the regulation as applied to the plaintiff. The
majority reasons that under General Statutes § 55-3,
which codifies a presumption against the retroactivity
of enacted statutes unless explicitly stated otherwise,
the termination of rental assistance to the plaintiff con-
stitutes ‘‘a new obligation’’ on the plaintiff’s status as
a registered sex offender. I do not agree that the defen-
dant’s decision involved retroactive application of
§ 17b-812-13 (9) of the regulations to the plaintiff.
Instead, I conclude that the defendant properly termi-
nated rental assistance to the plaintiff upon learning
that the plaintiff is subject to lifetime sex offender regis-
tration. The plain language of § 17b-812-13 of the regula-
tions provides the defendant with the discretion to
prospectively terminate rental assistance to program
participants. Because the majority concludes that the
termination of rental assistance to the plaintiff was a
retroactive application of the regulation and that the
defendant was without authority to terminate that assis-
tance, I respectfully dissent.
In its opinion, the majority adopts the plaintiff’s con-
tention that the trial court improperly dismissed his
administrative appeal on the ground that the defendant
did not apply § 17b-812-13 (9) of the regulations retroac-
tively in terminating his rental assistance. In contrast,
the defendant argues—in my view, correctly—that the
termination of the plaintiff’s rental assistance was
purely prospective and that the plain language of § 17b-
812-13 clearly provides the defendant with the discre-
tion to terminate rental assistance to a present partici-
pant under the program. Accordingly, I would conclude
that the trial court properly determined that application
of § 17b-812-13 (9) to the plaintiff was not impermis-
sively retroactive and that the defendant did not exceed
her authority in doing so.
I begin with the text of § 17b-812-13 of the regulations.
This court recognizes that ‘‘[a]dministrative regulations
have the full force and effect of statutory law and are
interpreted using the same process as statutory con-
struction, namely, under the well established principles
of General Statutes § 1-2z.’’ (Internal quotation marks
omitted.) Sarrazin v. Coastal, Inc., 311 Conn. 581, 603,
89 A.3d 841 (2014); Alexandre v. Commissioner of Reve-
nue Services, 300 Conn. 566, 578, 22 A.3d 518 (2011).
‘‘Only if we determine that the [regulation] is not plain
and unambiguous or yields absurd or unworkable
results may we consider extratextual evidence of its
meaning such as the [regulatory] history and circum-
stances surrounding its [promulgation] . . . . The test
to determine ambiguity is whether the [regulation],
when read in context, is susceptible to more than one
reasonable interpretation.’’ (Internal quotation marks
omitted.) Sarrazin v. Coastal, Inc., supra, 603–604;
Tine v. Zoning Board of Appeals, 308 Conn. 300, 305–
306, 63 A.3d 910 (2013).
Under the rental program’s enabling act, ‘‘[t]he Com-
missioner of Housing shall implement and administer
a program of rental assistance for low-income families
living in privately-owned rental housing. . . .’’ General
Statutes (Supp. 2016) § 8-345 (a). Under the mandate
of that legislative directive, in December, 2012, the
defendant amended § 17b-812-13 of the regulations,
which provides nine enumerated bases upon which the
defendant may deny or terminate rental assistance. The
regulation clearly states that ‘‘[t]he department or its
agent may deny program assistance to an applicant or
terminate assistance to a participant for any of the
following reasons . . . .’’ (Emphasis added.) Regs.,
Conn. State Agencies § 17b-812-13. One of the reasons
that may be cited for the denial or termination of bene-
fits is: ‘‘[A] household family member is subject to a
registration requirement under a state or federal sex
offender registration program.’’ (Emphasis added.) Id.,
§ 17b-812-13 (9). As the defendant notes in her brief,
the present tense phrasing of the regulation clearly dem-
onstrates that the defendant has the authority to termi-
nate rental assistance to a program participant, such as
the plaintiff, who is presently subject to a sex offender
registration requirement. Furthermore, the regulation
provides that the defendant ‘‘may’’ terminate benefits
for one of the enumerated reasons. Id., § 17b-812-13.
This court has ‘‘ ‘consistently held that ‘‘may’’ is direc-
tory rather than mandatory.’ ’’ Office of Consumer
Counsel v. Dept. of Public Utility Control, 252 Conn.
115, 122, 742 A.2d 1257 (2000); see Seals v. Hickey,
186 Conn. 337, 345, 441 A.2d 604 (1982). We therefore
recognize that ‘‘the word generally imports permissive
conduct and the conferral of discretion.’’ (Internal quo-
tation marks omitted.) Office of Consumer Counsel v.
Dept. of Public Utility Control, supra, 122; see Commis-
sion on Human Rights & Opportunities v. Truelove &
Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996);
see also Forest Walk, LLC v. Water Pollution Control
Authority, 291 Conn. 271, 286, 968 A.2d 345 (2009) (rec-
ognizing that agencies have broad discretion in carrying
out administrative duties).
Accordingly, the plain language of § 17b-812-13 of the
regulations unambiguously provides the defendant with
the discretion to terminate rental assistance to a pro-
gram participant if the participant falls within one of
the nine reasons listed in the regulation. In the present
case, the plaintiff is required to register as a sex offender
due to his 1997 conviction in New Jersey. I also note
that in oral argument before the trial court, counsel for
the defendant represented that the defendant’s decision
to terminate the plaintiff’s benefits under § 17b-812-13
(9) was motivated, at least in part, by the defendant’s
discovery that the plaintiff had misrepresented his sta-
tus as a sex offender on a 2010 form filed with the
defendant as part of the annual recertification process
for the plaintiff’s continued eligibility to receive rental
assistance. Apparently, the defendant was unaware of
the plaintiff’s sex offender status at the time he was
initially admitted to the program. Because the plaintiff’s
conviction was in New Jersey, the defendant’s initial
Connecticut background check did not reveal that con-
viction, and the defendant remained unaware of the
plaintiff’s status until a national sex offender registry
was available online in 2010. The defendant had no
knowledge of the plaintiff’s status at the time of his
admission to the rental program in 2009.
The defendant, therefore, had the authority to termi-
nate the plaintiff’s continued rental assistance under
the program. The termination of rental assistance to
the plaintiff is no different than if the defendant had
terminated a program participant’s continued rental
assistance for one of the other reasons provided in
§ 17b-812-13 of the regulations, such as when a partici-
pant currently owes rent or other moneys in connection
with a rental subsidy program, has engaged in violent
or abusive behavior toward the defendant’s personnel
or when a participant fails to report an increase in
personal income. See Regs., Conn. State Agencies § 17b-
812-13 (6) through (8). I also observe that the majority
appears to suggest that once an applicant has been
admitted into the rental assistance program and begins
receiving rental assistance, the only circumstance that
would warrant the termination of rental assistance to
a participant is the participant’s failure to comply with
the obligations outlined in § 17b-812-12 of the Regula-
tions of Connecticut State Agencies. Although § 17b-
812-12 establishes a number of acts that participants
must perform and lists acts that a participant may not
undertake while participating in the rental assistance
program, that regulation clearly does not serve as an
exclusive listing of those circumstances that may lead
to the termination of rental assistance to a participant.
For example, § 17b-812-13 provides broader grounds
for termination, as it provides that the defendant may
both deny rental assistance to initial applicants and
terminate rental assistance to admitted participants on
the bases of the enumerated grounds for termination,
some of which—such as registration as a sex offender
or unpaid rent or other moneys—have no corollary in
§ 17b-812-12.
In the present case, the plaintiff was subject to a sex
offender registration requirement at the time he was
receiving rental assistance benefits. The defendant had
the discretion to terminate rental assistance to program
participants subject to such registration requirements.
The defendant did so. In my view, the text of § 17b-
812-13 of the regulations is clear and permits the defen-
dant to terminate rental assistance to program partici-
pants in the very manner in which she did so in regard
to the plaintiff.
The majority, however, determines that the termina-
tion of rental assistance to the plaintiff constitutes a
‘‘new obligation’’ on the plaintiff’s sex offender status
resulting from his 1997 conviction that runs afoul of
Connecticut’s codified presumption against retroactive
legislation. General Statutes § 55-3. I disagree with the
majority’s characterization that the defendant’s reliance
on § 17b-812-13 (9) of the regulations constituted retro-
active application of the regulation. As I have explained,
the regulation provides the defendant with the discre-
tion to terminate current rental assistance benefits
whenever a participant falls within one of the nine out-
lined scenarios. See Regs., Conn. State Agencies § 17b-
812-13. The majority endorses the plaintiff’s premise
for retroactivity, namely, that application of the regula-
tion to the plaintiff imposed an additional legal burden
on his sex offender status stemming from his 1997 con-
viction, the same conviction that requires the plaintiff
to remain registered as a sex offender in the present.2
This is an argument that the trial court properly
rejected.
As the United States Supreme Court has observed,
just because a statute ‘‘is applied in a case arising from
conduct antedating the statute’s enactment . . . or
upsets expectations based in prior law,’’ it does not
necessarily denote retroactivity. (Citation omitted.)
Landgraf v. USI Film Products, 511 U.S. 244, 269, 114
S. Ct. 1483, 128 L. Ed. 2d 229 (1994). In the trial court’s
view, it was ‘‘absurd’’ to argue that the plaintiff had any
expectation in 1997 that his conviction would lead to
a potential future inability to receive rental assistance
in 2013. I would agree with the trial court that § 17b-
812-13 (9) of the regulations is not retroactive merely
because the plaintiff’s presence on the sex offender
registry stems from a conviction that occurred prior to
the current regulation’s promulgation. See also Rey-
nolds v. United States, 292 U.S. 443, 449, 54 S. Ct. 800,
78 L. Ed. 1353 (1934) (statute not retroactive ‘‘merely
because the facts or requisites upon which its subse-
quent action depends . . . are drawn from a time ante-
cedent to the enactment’’); Cox v. Hart, 260 U.S. 427,
435, 43 S. Ct. 154, 67 L. Ed. 332 (1922) (‘‘[a] statute is
not made retroactive merely because it draws upon
antecedent facts for its operation’’); United States v.
Leach, 639 F.3d 773, 743 (7th Cir. 2011) (statute that
‘‘creates new, prospective legal obligations based on
the person’s prior history’’ is not retrospective).
Under the majority’s view, § 17b-812-13 (9) of the
regulations could not fairly be applied to the plaintiff
because his conviction leading to his sex offender regis-
tration occurred in 1997 and the new regulation was
promulgated in 2012. But then, is the same not true for
any other person seeking or currently receiving rental
assistance who is required to register as a sex offender
due to a conviction that occurred prior to 2012? And
if so, would not § 17b-812-13 (9) of the regulations there-
fore apply only to those registered sex offenders whose
underlying convictions occurred after 2012, in order to
not constitute a ‘‘new obligation’’ and thereby run amiss
of § 55-3? This result would seemingly apply to the other
subsections of § 17b-812-13 of the regulations that were
promulgated in 2012, most of which are for acts far
more benign than one that would warrant a participant’s
inclusion on the sex offender registry. For example,
§ 17b-812-13 (7) of the regulations provides the defen-
dant with the authority to terminate rental assistance
to a participant who has engaged in violent behavior
toward the defendant’s personnel. Similarly, § 17b-812-
13 (8) of the regulations permits the defendant to termi-
nate rental assistance to a participant who fails to report
a change in income that results in rental assistance
overpayments in excess of $2500. Under the majority’s
reasoning, the defendant is barred from terminating
the rental assistance benefits of participants who were
violent or collected excess assistance payments prior
to the promulgation of the new regulation in 2012
because at the time the participants committed such
acts they did not rely on the fact that, in deciding to
behave violently or accept overpayments, they would
face ineligibility for future benefits after 2012.
Indeed, the majority’s agreement with the plaintiff’s
argument runs the risk of potentially causing some regu-
lations to become frozen in time, thereby eroding the
discretion and flexibility of administrative agencies to
provide continued public benefits when faced with
finite resources to do so. As the defendant stated in
her brief, the Department of Housing is tasked with
administering a public benefit program for which there
is an overwhelming demand from citizens seeking assis-
tance that greatly outpaces the defendant’s ability to
provide rental subsidies to all those who seek them.3
Given that the defendant has a limited amount of funds
to devote to the rental assistance program, the defen-
dant must have the necessary discretion to deny appli-
cants admission to the program and terminate the
benefits of those already admitted in order to reallocate
those funds to other persons in need of assistance.
Regulations such as § 17b-812-13 achieve this objective
by providing the defendant with discrete and articulable
criteria on which to deny or terminate rental assistance
without wading into the mire of arbitrary and unprinci-
pled decision making. The majority’s approach has the
result of crippling the defendant’s discretionary admin-
istration of the rental assistance program—or, for that
matter, any other executive agency’s administration of
a public benefit program. This is particularly so under
the circumstances of the present case, where the defen-
dant terminated the plaintiff’s benefits not on a whim
but pursuant to the articulable criteria contained in a
lawfully promulgated regulation.
In my view, a more fitting approach to this issue is
reflected in the series of Illinois medical licensing cases
cited by the defendant and on which the trial court
relied in part in reaching its decision that § 17b-812-13
of the regulations is not retroactive. See Bhalerao v.
Illinois Dept. of Financial & Professional Regulations,
834 F. Supp. 2d 775, 783 (N.D. Ill. 2011); Consiglio
v. Dept. of Financial & Professional Regulation, 988
N.E.2d 1020, 1029 (Ill. App. 2013), aff’d sub nom. Hay-
ashi v. Dept. of Financial & Professional Regulation,
25 N.E.3d 570 (Ill. 2014), cert. denied, U.S. , 135
S. Ct. 2868, 192 L. Ed. 2d 897 (2015); Rodrigues v. Quinn,
990 N.E.2d 1179, 1182 (Ill. App. 2013). In Bhalerao, the
Illinois statute at issue required the automatic revoca-
tion of the medical license of any health-care profes-
sional who had been convicted of a criminal battery.
Bhalerao v. Illinois Dept. of Financial & Professional
Regulations, supra, 780. The plaintiff argued that the
statute operated retroactively because the termination
of his medical license was predicated on a criminal
conviction that occurred prior to the statute’s enact-
ment. Id., 782–83. In rejecting the plaintiff’s claims, the
District Court observed that ‘‘it seems superficial to
argue that [the] [p]laintiff might have decided not to
commit the battery or might have resisted conviction
more vigorously had he known that he faced not only
criminal penalties but also might not be entitled to the
exercise of the [Illinois state agency’s] discretion in
regard to whether his license would be revoked.’’ (Inter-
nal quotation marks omitted.) Id., 784; see LaGuerre v.
Reno, 164 F.3d 1035, 1041 (7th Cir. 1998) (invoking
similar reasoning in context of deportation), cert.
denied, 528 U.S. 1153, 120 S. Ct. 1157, 145 L. Ed. 2d
1069 (2000). The court in Bhalerao reasoned that the
statute at issue looked only ‘‘prospectively at [the]
[p]laintiff’s right to continue practicing medicine in the
future. . . . It does not impinge on the right that [the]
[p]laintiff had in the preceding years to practice—for
example, by divesting him of any profits that he earned
prior to its enactment or deeming unauthorized his prac-
tice of medicine during the time between his conviction
and the revocation of his license.’’ (Citation omitted.)
Bhalerao v. Illinois Dept. of Financial & Professional
Regulations, supra, 783.
The reasoning of Bhalerao and the other decisions
determining that the Illinois medical licensing statute
was not impermissibly retroactive has been relied on
in other contexts in which parties have raised the issue
of the retroactivity of statutes or regulations based on
conduct that occurred prior to their enactment or pro-
mulgation. See Smith v. Doe, 538 U.S. 84, 91, 105–106,
123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (upholding
inclusion of persons on sex offender registry whose
crimes were committed prior to passage of act estab-
lishing registry); Ohio Head Start Assn., Inc. v. United
States Dept. of Health & Human Services, 873 F. Supp.
2d 335, 348 (D.D.C. 2012) (regulation authorizing federal
agency to use antecedent data in order to determine
eligibility for future benefits was not retroactive), aff’d,
510 Fed. Appx. 1 (D.C. Cir. 2013); In re Sheneal W., 45
Conn. Supp. 586, 595, 728 A.2d 544 (1999) (legislature’s
use of present perfect tense in statute denotes intent
for court to consider actions of parents prior to statute’s
passage); Hernandez v. Dept. of State, Division of
Licensing, 629 So. 2d 205, 206 (Fla. App. 1993) (revoca-
tion of private investigator’s license on basis of felony
conviction that occurred prior to enactment of statute
requiring revocation was not retroactive), review
denied, 640 So. 2d 1107 (Fla. 1994); Wilson v. Dept. of
Financial & Professional Regulation, 991 N.E.2d 779,
783, 786 (Ill. App. 2013) (statute invoked to deny
renewal of mortgage loan originator license on basis
of tax fraud conviction not retroactive when plaintiff’s
conviction was prior to enactment of statute); Board
of Medical Examiners v. Nzedu, 228 S.W.3d 267, 272
(Tex. App. 2007) (statute permitting consideration of
applicant’s attempt to pass state medical licensing exam
prior to enactment of statute limiting permissible num-
ber of attempts was not unconstitutional and applica-
tion of statute was not retroactive). The circumstances
of the present case are akin to these cases. The plaintiff
claims, and the majority agrees, that because the plain-
tiff’s sex offender registration requirement stemmed
from a 1997 conviction and the new regulation was
promulgated in 2012, then any application of the regula-
tion to him is necessarily retroactive. The reasoning of
Bhalerao and the other authorities I have cited demon-
strate that this is not the case, and that the plaintiff’s
sex offender status based on a prior conviction does not
render § 17b-812-13 (9) of the regulations retroactive.
That being said, however, I reemphasize my initial
point that the plain language of § 17b-812-13 of the regu-
lations unambiguously provides the defendant with the
discretion to terminate rental assistance to program
participants who are currently subject to registration
as a sex offender. As the plaintiff was subject to registra-
tion when the defendant terminated his rental assis-
tance, the plaintiff’s retroactivity concerns fail to
materialize in the present case.4 Accordingly, I would
affirm the judgment of the trial court dismissing the
plaintiff’s administrative appeal. Because the majority
opinion does not account for the defendant’s present
regulatory authority to terminate rental assistance to
those participants currently on a sex offender registry
and has the ultimate effect of curtailing the discretion
of the defendant in carrying out her statutory duties, I
respectfully dissent.
1
The Commissioner of Housing acts on behalf of the Department of
Housing. For the sake of simplicity, all references to the defendant herein-
after include both the commissioner and the department.
2
The plaintiff’s argument on this point in his brief is slightly more attenu-
ated. The plaintiff reasons that because his inclusion on the sex offender
registry is the basis for the termination of his rental assistance benefits,
and the only reason he is on the registry in the first place is because of his
1997 conviction, the sole basis for the termination of his rental assistance
benefits, therefore, is actually his 1997 conviction. The plaintiff suggests
that relying on his presence on the sex offender registry is a ‘‘hyper-technical
bifurcation’’ of his conviction and his duty to register as a sex offender.
3
According to the defendant, there are currently more than 4000 applicants
on the waiting list for the rental assistance program.
4
I briefly observe that, in my view, the trial court properly rejected the
plaintiff’s additional claims that the defendant denied him due process in
terminating his rental assistance benefits. The administrative history of the
present case clearly establishes that the plaintiff was provided with notice
and a hearing in accord with the defendant’s own procedures as outlined
in § 17b-812-14 of the Regulations of Connecticut State Agencies. See Gold-
berg v. Kelly, 397 U.S. 254, 267–71, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).