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Shannon v. Commissioner of Housing

Supreme Court of Connecticut

August 2, 2016

FRANCIS SHANNON
v.
COMMISSIONER OF HOUSING

          Argued Date February 23, 2016

          Cecil J. Thomas, for the appellant (plaintiff).

          Alan N. Ponanski, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

          Amy Eppler-Epstein and Jane Shim, law student intern, filed a brief for the New Haven Legal Assistance Association, Inc., et al. as amici curiae.

          Rogers, C. J., and Palmer, Zarella, Espinosa and Robinson, Js.

          OPINION

          ROBINSON, J.

         The defendant, the Commissioner of Housing, [1] administers the state rental assistance program (rental program), which, like the federal program operated pursuant to § 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f (section 8 program), provides ‘‘rental assistance for low-income families living in privately-owned rental housing.’’ General Statutes (Supp. 2016) § 8-345 (a);[2] see also, e.g., Commission on Human Rights&Opportunities v. Sullivan Associates, 250 Conn. 763, 769–70, 739 A.2d 238 (1999) (discussing section 8 program). In this appeal, we consider whether the defendant may terminate rental program assistance to a registered sex offender who had that status when he was admitted to the rental program prior to the promulgation of § 17b-812-13 (9) of the Regulations of Connecticut State Agencies, [3] which makes sex offender registration a ground for termination or denial of rental program assistance. The plaintiff, Francis Shannon, appeals[4] from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant to terminate his rental program assistance. On appeal, the plaintiff claims, inter alia, that the trial court improperly concluded that the defendant’s application of § 17b-812-13 (9) of the regulations was not retroactive and, thus, did not exceed the authority granted to the defendant by the legislature. We conclude that the relevant statutes, regulations, and agency policies demonstrate that the defendant applied § 17b-812-13 (9) of the regulations retroactively by imposing a new obligation on the plaintiff’s sex offender status that terminated his rental program assistance, and that the legislature did not authorize such retroactive agency action. Accordingly, we reverse the judgment of the trial court.

         The record reveals the following undisputed facts and procedural history. The plaintiff, who has been a registered sex offender since 1997, [5] is legally blind and suffers from a variety of serious illnesses. He relies on disability and food stamp benefits for income. In 2008, the plaintiff, who had been living under a bridge, began to receive assistance from Hands on Hartford, Inc., a nonprofit agency, which placed him in a congregate housing setting and later helped him apply for the rental program. In 2009, the Department of Social Services, which administered the rental program at the time, gave the plaintiff a certificate admitting him into the rental program, which helped him to live independently in an apartment with supportive services.

         When the plaintiff entered the rental program, the Department of Social Services did not have a regulation or formal policy in the administrative plan for the rental assistance program (administrative plan) establishing sex offender registration as a ground for denial or termination of assistance.[6] In December, 2012, however, the Department of Social Services promulgated § 17b-812-13 (9) of the regulations, which provides for the denial of assistance to an applicant or the termination of assistance to a participant if ‘‘a household family member is subject to a registration requirement under a state or federal sex offender registration program.’’ The defendant subsequently assumed responsibility for the rental program from the Department of Social Services. See Public Acts 2013, No. 13-234, § 2.[7]

         On July 24, 2013, John D’Amelia Associates, a contractor that manages the rental program as an agent of the defendant in conjunction with several local housing authorities, notified the plaintiff that his participation in the rental program would terminate effective July 31, 2013. The plaintiff timely exercised his right to an administrative hearing and, following a series of administrative remands and motions for reconsideration, the defendant issued a final decision on May 1, 2014. In that decision, the defendant found that the plaintiff’s ‘‘extenuating circumstances [were] not sufficient to warrant the continuation of his [rental program] benefits.’’[8] Accordingly, the defendant ordered the termination of the plaintiff’s rental program benefits effective May 31, 2014.

         The plaintiff took an administrative appeal from the decision of the defendant to the trial court pursuant to General Statutes § 4-183, claiming, inter alia, that the defendant had applied § 17b-812-13 (9) of the regulations retroactively in a manner that was impermissible because it was not legislatively authorized. Relying on Landgraf v. USI Film Products, 511 U.S. 244, 269–70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Bhalerao v. Illinois Dept. of Financial & Professional Regulations, 834 F.Supp.2d 775, 783–84 (N.D. Ill. 2011), the trial court concluded that the defendant’s application of § 17b-812-13 (9) of the regulations was ‘‘not retroactive. It does not require reimbursement of or otherwise penalize past receipt of [rental program] benefits. Nor does it affect anyone based on his or her prior listing on a sex offender registry’’ insofar as ‘‘it applies only to persons contemporaneously on a sex offender list.’’[9]The trial court, therefore, determined that it ‘‘need not address the question of whether the [defendant] had authority to enact a retroactive regulation.’’ After rejecting the plaintiff’s numerous other claims, [10] the trial court rendered judgment dismissing the plaintiff’s administrative appeal. This appeal followed.[11]

         Although the plaintiff presents several issues in this appeal, [12] we find dispositive his claim that the trial court improperly concluded that the defendant’s application of § 17b-812-13 (9) of the regulations to terminate his rental program assistance was not retroactive, in excess of the rule-making authority conferred on the defendant by the legislature. Citing the long-standing presumption against retroactive legislation embodiedin General Statutes § 55-3;[13] see, e.g., D’Eramo v. Smith, 273 Conn. 610, 620–21, 872 A.2d 408 (2005); the plaintiff argues that the defendant applied§ 17b-812-13 (9)of the regulations in a manner that ‘‘takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past . . . .’’ (Internal quotation marks omitted.) Landgraf v. USI Film Products, supra, 511 U.S. 269. The plaintiff contends that the trial court’s determination that the application of § 17b-812-13 (9) of the regulations was not retroactive, because it did not penalize the plaintiff’s earlier receipt of rental program benefits or require him to repay them, is inconsistent with the United States Supreme Court’s immigration decisions in Vartelas v. Holder, U.S., 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), and Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and this court’s pension decision in Gormley v. State Employees Retirement Commission, 216 Conn. 523, 582 A.2d 764 (1990). The plaintiff also argues that, before § 17b-812-13 (9) of the regulations was promulgated, the governing statute, regulations, and policies afforded him a property interest in continued participation in the rental program that had vested with his admission to the rental program in 2009, observing that Congress barred the admission of registered sex offenders into the similar section 8 program; see 42 U.S.C. §§ 13663 (a) and 13664 (a) (2) (B); but did not ‘‘authorize . . . the termination of existing participants subject to a registry obligation.’’ See also Miller v. McCormick, 605 F.Supp.2d 296, 312–13 (D. Me. 2009). The plaintiff emphasizes that the trial court ‘‘speculative[ly]’’ focused on the plaintiff’s lack of reliance on the rental program in 1997 when he pleaded guilty to a sex offense, rather than the ‘‘settled expectations and reasonable reliance’’ created by the law effective at the time of his admission to the rental program in 2009, particularly given his dependence on the assistance provided through the rental program.[14]

         In response, the defendant contends that the decision to terminate the plaintiff’s rental program assistance pursuant to § 17b-812-13 (9) of the regulations was prospective under Landgraf v. USI Film Products, supra, 511 U.S. 269–70. The defendant relies on a grant renewal case, Ohio Head Start Assn., Inc. v. United States Dept. of Health & Human Services, 873 F.Supp.2d 335 (D.D.C. 2012), aff’d, 510 Fed.Appx. 1 (D.C. Cir. 2013), and a series of Illinois cases upholding the revocation of professional licenses as a consequence of certain preexisting criminal convictions. See, e.g., Bhalerao v. Illinois Dept. of Financial & Professional Regulations, supra, 834 F.Supp.2d 775. The defendant further emphasizes that, although ‘‘the termination looks back in time in that it considers a prior conviction, it does not make [the plaintiff’s] termination effective from a past date or alter his participation in the [rental] pro- gram from 2009 until the time of his termination. This is especially true given that [the defendant] has not asked [the] plaintiff to repay any [rental program benefits] he received prior to his termination.’’ Citing, inter alia, Ridgely v. Federal Emergency Management Agency, 512 F.3d 727 (5th Cir. 2008), and Colson v. Sillman, 35 F.3d 106 (2d Cir. 1994), the defendant further argues that the plaintiff has no vested property right in his benefits because the rental program is ‘‘not an entitlement program’’ and its participants are not ‘‘automatically entitled to a continuation of benefits, ’’ insofar as the defendant maintains continuing discretion to deny or terminate assistance. Thus, the defendant contends that the plaintiff had ‘‘no ‘settled expectation’ or ‘reasonable reliance’ on his ongoing participation in [the rental program], ’’ and that the plaintiff’s interpretation of the rules would preclude ‘‘the government from modifying its policy to serve other deserving constituencies with limited dollars.’’ We, however, agree with the plaintiff, and conclude that the defendant’s application of § 17b-812-13 (9) was retroactive and, therefore, not authorized by the legislature.

         We begin with the standard of review. The trial court’s determination of whether the defendant’s application of § 17b-812-13 (9) of the regulations had a retroactive effect is a question of law over which we exercise plenary review. See, e.g., Durable Mfg. Co. v. United States Dept. of Labor, 578 F.3d 497, 502–503 (7th Cir. 2009); BellSouth Telecommunications, Inc. v. Southeast Telephone, Inc., 462 F.3d 650, 657 (6th Cir. 2006); accord Lane v. Commissioner of Environmental Protection, 314 Conn. 1, 16, 100 A.3d 384 (2014).

         As the plaintiff observes, § 55-3 provides that: ‘‘No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.’’ (Emphasis added.) It is well established that § 55-3 is ‘‘a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The rule is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation.’’[15] (Internal quotation marks omitted.) Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 867–68, 74 A.3d 1192 (2013); see also Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 426, 119 A.3d 462 (2015) (Connecticut law ‘‘embraces the constitutional permissibility of ‘manifestly just’ retroactive legislation affecting existing legal rights and obligations’’).

         This presumption against the retroactive application of statutes applies similarly to regulations that impose, in the parlance of § 55-3, ‘‘new obligation[s] . . . .’’ See, e.g., Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); accord Sarrazin v. Coastal, Inc., 311 Conn. 581, 610, 89 A.3d 841 (2014) (same principles govern interpretation of statutes and regulations). Indeed, ‘‘a statutory grant of legislative [rule-making] authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by [the legislature] in express terms. . . . Even where some substantial justification for retroactive [rule making] is presented, courts should be reluctant to find such authority absent an express statutory grant.’’ (Citation omitted.) Bowen v. Georgetown University Hospital, supra, 208–209. Thus, ‘‘[w]hen, as here, an administrative rule is at issue, the inquiry is two-fold: whether [the legislature] has expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect.’’ Durable Mfg. Co. v. United States Dept. of Labor, supra, 578 F.3d 503.

         Because the defendant does not argue that the legislature authorized retroactive regulations with respect to the rental program, resolution of this issue turns on whether § 17b-812-13 (9) of the regulations was, in fact, retroactively applied to terminate the plaintiff’s assistance on the basis of his status as a registered sex offender.[16] As the trial court recognized, the United States Supreme Court’s decision in Landgraf v. USI Film Products, supra, 511 U.S. 244, furnishes the leading articulation of when a new law has been applied retroactively. ‘‘While statutory retroactivity has long been disfavored, deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.’’ Id., 268. Consistent with the ‘‘new obligation’’ focus under § 55-3, the Supreme Court stated that a ‘‘statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment . . . or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity.’’ (Citation omitted; emphasis added; footnote omitted.) Id., 269–70. ‘‘However, retroactivity is a matter on which judges tend to have sound . . . instinct[s] . . . and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.’’[17] (Citation omitted; internal quotation marks omitted.) Id., 270.

         The Supreme Court explained further that ‘‘[t]he presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact.’’ Id.; accord D’Eramo v. Smith, supra, 273 Conn. 620 n.8 (‘‘the presumption against retroactivity is rooted in common-law notions of fairness that have general application, ’’ including that ‘‘individuals should have an opportunity to know what the law is and to conform their conduct accordingly’’ and that ‘‘settled expectations should not be lightly disrupted’’ [internal quotation marks omitted]); Miano v. Thorne, 218 Conn. 170, 176, 588 A.2d 189 (1991) (‘‘[t]he rule is one of obvious justice and prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed’’ [internal quotation marks omitted]). The court observed that ‘‘[t]he largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance.’’ Landgraf v. USI Film Products, supra, 511 U.S. 271. Put differently, under Landgraf, a law has retroactive effect when it ‘‘would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’’ Id., 280; accord Rudewicz v. Gagne, 22 Conn.App. 285, 290–91, 582 A.2d 463 (1990) (applying § 55-3 and concluding that ‘‘[w]e cannot now declare that the defendants’ property rights were invalidated by a statute [governing discontinuance of public highways, which] was passed nearly fifty years after those rights had vested’’). Finally, the ‘‘Landgraf analysis applies equally to administrative rules.’’ Durable Mfg. Co. v. United States Dept. of Labor, supra, 578 F.3d 503 n.9; see also Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 202, 213 (2d Cir. 2006), cert. denied, 549 U.S. 1209, 127 S.Ct. 1334, 167 L.Ed.2d 81 (2007).

         We begin by noting our disagreement with the defendant’s purely temporal argument, which is echoed by the dissent, namely, that the application of § 17b-812-13 (9) of the regulations to terminate the plaintiff’s rental program assistance was not retroactive under Landgraf because the defendant did not seek repayment of past benefits, and there is no indication of a relationship between the plaintiff’s guilty plea in 1997 and his decision to seek rental program assistance in 2009. The defendant and the dissent rely on a line of Illinois cases, following Bhalerao v. Illinois Dept. of Financial & Professional Regulations, supra, 834 F.Supp.2d 782–83, that examine a statute revoking, by operation of law, the professional licenses of healthcare providers who had certain criminal convictions, and conclude that the application of that statute to providers who had preexisting convictions was not retroactive. See, e.g., Hayashi v. Dept. of Financial & Professional Regulation, 25 N.E.3d 570, 578–79 (Ill. 2014), cert. denied, U.S., 135 S.Ct. 2868, 192 L.Ed.2d 897 (2015). These courts reasoned that it was not retroactive to apply the statute in this manner because it did not affect the legality of practice or divest any earnings from the period of time between the conviction and the enactment of the statute. See, e.g., id.; see also Bhalerao v. Illinois Dept. of Financial & Professional Regulations, supra, 782–83. The court in Bhalerao also described it as ‘‘superficial to argue that [a physician] ‘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 licensing board’s] discretion in regard to whether his license would be revoked.’’[18] Bhalerao v. Illinois Dept. of Financial & Professional Regulations, supra, 784.

         We agree with the plaintiff’s contention in his reply brief that the reliance based analysis in Bhalerao, focusing strictly on the time of the guilty plea, is overly rigid and wholly inconsistent with the broader, more realistic approach taken by the Supreme Court in St. Cyr and Vartelas, which specifically rejected ‘‘[s]uch categorical arguments [as] not particularly helpful in undertaking Landgraf’s commonsense, functional retroactivity analysis.’’[19] Immigration & Naturalization Service v. St. Cyr, supra, 533 U.S. 324; see also Vartelas v. Holder, supra, 132 S.Ct. 1489–91 (concluding that statutory change that effectively precluded lawful permanent residents with convictions of crimes of moral turpitude from traveling abroad for short durations by creating potential barrier to reentry was retroactive because it constituted ‘‘ ‘new disability’ ’’ and ‘‘ ‘new legal consequence’ ’’ for conviction obtained years before change); Immigration & Naturalization Service v. St. Cyr, supra, 324–26 (rejecting government’s argument that deportation proceedings are ‘‘ ‘inherently prospective’ ’’ such that ‘‘application of the law of deportation can never have a retroactive effect, ’’ in holding that 8 U.S.C. § 212 [c], which prior to its repeal provided for discretionary relief from deportation, ‘‘remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212 [c] relief at the time of their plea under the law then in effect’’). Indeed, another federal court has recently criticized and distinguished retroactivity analysis in Bhalerao by concluding that it was impermissibly retroactive under the ‘‘new legal consequences’’ test of Landgraf to apply a statute suspending the driver and professional licenses of those with tax delinquencies to current tax delinquents on the ground of prior debts. See Berjikian v. Franchise Tax Board, 93 F.Supp.3d 1151, 1159–60 (C.D. Cal. 2015). Accordingly, we view the rigidity of the Bhalerao approach as inconsistent with the Supreme Court’s later Landgraf cases, particularly with respect to continued access to a government benefit.

         Thus, whether the application of a new law to restrict or terminate future access to a government benefit on the basis of past events operates retroactively-by creating a ‘‘new obligation’’ in the parlance of § 55-3- depends on the extent to which the law interferes with the ‘‘present right to future benefits . . . .’’ Gormley v. State Employees Retirement Commission, supra, 216 Conn. 532. Applying this standard, this court concluded in Gormley that it was impermissibly retroactive under § 55-3 to apply General Statutes § 51-287 (e), which the legislature enacted to end pension ‘‘ ‘double-dipping, ’ ’’[20] to terminate a prosecutor’s pension, which a state judge was collecting along with his judicial salary. Id., 527–28. The court emphasized that, ‘‘[i]t is undisputed that prior to the enactment of § 51-287 (e), the [judge] would have been entitled to collect both his retirement income and a salary upon being appointed, ’’ and held that the ‘‘dispositive fact is not that [he] was appointed as a judge seventeen months after that enactment, but that seven years earlier, when he had retired as chief state’s attorney, he was statutorily entitled to receive a pension. . . . He then began receiving his pension, and it is the provisions of the plan at that time that are controlling on him. The application of § 51-287 (e) would impose upon the [judge] a new obligation, that of choosing between the continuing receipt of his pension benefits or accepting a judgeship, an obligation to which he was not subject prior to its passage. . . . [His] substantive right to continue to receive his pension regardless of his future employment would be implicated by the imposition of this new obligation.’’ (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 529–30. The court rejected the retirement commission’s argument that a ‘‘statute suspending pension benefits that one is already receiving has no retrospective effect simply because that suspension will occur upon the happening of a future event. It takes little imagination to recognize that such a rule would set such benefits down a slippery slope that would undermine legitimate and settled expectations.’’ Id., 532.

         To determine the extent to which § 17b-812-13 (9) of the regulations created a new obligation by interfering with the plaintiff’s present right to receive future benefits, we now examine the terms of the rental program, under the applicable statutes, regulations, and agency policies, as set forth in the 2011 revision of the administrative plan. Dept. of Social Services, Administrative Plan for the Rental Assistance Program (July 1, 2011) pp. 15-1 through 15-2; see footnote 6 of this opinion; see also Durable Mfg. Co. v. United States Dept. of Labor, supra, 578 F.3d 503–504 (change in labor certification requirements for visa petitions not retroactively applied when previous regulation had stated that ‘‘approved labor certifications were valid ‘indefinitely’ ’’ because ‘‘indefinite’’ is not synonymous with ‘‘permanently valid, ’’ meaning that ‘‘any expectations that the plaintiffs had regarding the continued validity of their labor certifications were not settled due to the unfixed character of the old regulation’’); Ridgely v. Federal Emergency Management Agency, supra, 512 F.3d 737–39 (determining whether ‘‘property interest in a stream of benefits’’ was created by statutes, regulations, and agency practices that would entitle recipient to ‘‘receive recurring . . . payments upon an initial showing of eligibility’’); Ohio Head Start Assn., Inc. v. United States Dept. of Health & Human Services, supra, 873 F.Supp.2d 350–51 (examining statutes and regulations governing early childhood educational grant program, determining that new criteria for renewal were not applied retroactively, and stating that recipients ‘‘cannot credibly argue the [regulation] confirmed or created any entitlement to automatic renewal of [their] grants’’ and that ‘‘[a]bsent any formal or informal grounds on which to base its purported entitlement to automatic renewal of [their] grants, the [recipients] have no protected property interest’’).

         We begin with the enabling statute, § 8-345; see footnote 2 of this opinion; which requires the defendant to ‘‘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); and directs the defendant to adopt regulations, including those to ‘‘establish maximum income eligibility guidelines for such rental assistance and criteria for determining the amount of rental assistance which shall be provided to eligible families.’’ General Statutes (Supp. 2016) § 8-345 (g). The enabling statute itself does nothing to limit the participants’ rights to remain enrolled and receive a future stream of benefits from the rental program, so long as the rental program is funded. See General Statutes (Supp. 2016) § 8-345 (f) (‘‘[n]othing in this section shall give any person a right to continued receipt of rental assistance at any time that the program is not funded’’); accord Regs., Conn. State Agencies § 17b-812-2 (b) (‘‘The commissioner . . . shall limit the issuance of rental assistance certificates to eligible families based upon the availability of funds. A certificate does not guarantee a family the right to participate in the program. The commissioner or the commissioner’s agent may suspend or cancel an issued certificate if a change in an applicant’s circumstances results in ineligibility prior to execution of the rental assistance contract. The commissioner may suspend or cancel issued certificates based on lack of funds.’’).

         Contrary to the arguments of the defendant, neither the regulations nor the agency policies stated in the administrative plan provide a durational limit on recipients’ enrollment in the rental program, once they have requested and received approval of appropriate housing within the period prescribed by the admission regulation; see Regs., Conn. State Agencies § 17b-812-5 (c) through (e);[21] following receipt of the certificate, upon selection from the waiting list, confirming their eligibility. Although § 17b-812-9 of the Regulations of Connecticut State Agencies[22] mandates an annual reexamination of the recipients’ income and family composition, which are factors determining the amount of assistance to be given from year to year, nowhere does it or the corresponding portion of the administrative plan impose a restriction on recipients’ continued enrollment in the rental program once they are admitted initially and begin to receive assistance.[23] Indeed, the defendant’s suggestion of a one year durational limit on eligibility for the rental program is inconsistent with the regulations prescribing those housing arrangements that are eligible for the benefit, which require a rental agreement of ‘‘not less than one year.’’[24] (Emphasis added.) Regs., Conn. State Agencies § 17b-812-8 (b). Thus, to avoid becoming subject to termination in accordance with § 17b-812-13 of the regulations; see footnote 3 of this opinion; rental program recipients need only ‘‘comply with [the obligations set forth in § 17b-812-12 (b) and (c)] in order to continue participating . . . .’’ Regs., Conn. State Agencies § 17b-812-12 (a); see also id., § 17b-812-12 (b) and (c) (setting forth obligations).[25] Accordingly, nothing in the regulations governing the rental program suggests that enrollment therein is for a limited duration such that the termination of his future benefits did not constitute a new obligation or legal consequence for the plaintiff.

         The defendant contends, however, that consistent with the regulations’ description of the rental program as a ‘‘non-entitlement program’’; id., § 17b-812-2 (a); a ‘‘participant is not automatically entitled to a continuation of benefits’’ insofar as the rental program has ‘‘specific rules that a participant must follow to receive assistance.’’ The defendant posits that the regulations and the 2011 revision of the administrative plan ‘‘clearly enumerate the grounds and procedure for termination at any time’’ insofar as the defendant ‘‘may exercise discretion in the decision of whether to deny or terminate assistance.’’ We disagree. First, the defendant’s reliance on the ‘‘non-entitlement’’ language in § 17b-812-2 (a) is inapposite, given that the plaintiff is an approved recipient, rather than a mere applicant, for rental program benefits.[26] See, e.g., Abreu v. Callahan, 971 F.Supp. 799, 825 (S.D.N.Y. 1997) (‘‘[a] legitimate claim of entitlement to a government benefit therefore exists where a claimant satisfies the qualifications for the benefit and the granting official lacks discretion to reject a qualified applicant’’); see also Regs., Conn. State Agencies § 17b-812-2 (b) (‘‘A certificate does not guarantee a family the right to participate in the program. The commissioner or the commissioner’s agent may suspend or cancel an issued certificate if a change in an applicant’s circumstances results in ineligibility prior to execution of the rental assistance contract.’’). Second, the defendant fails to read in context the cited portion of the 2011 revision of the administrative plan, which simply emphasizes that the agency administering benefits for the defendant has discretion to not terminate assistance as a result of the enumerated grounds, such as the breach of one of the family’s obligations under the program.[27] See Dept. of Social Services, Administrative Plan for the Rental Assistance Program (July 1, 2011) pp. 15-1 through 15-10. Put simply, nothing in the statute, regulations, or 2011 revision of the administrative plan supports the defendant’s argument that, once admitted and given the benefit of an executed rental assistance contract; see Regs., Conn. State Agencies § 17b-812-2 (b); a recipient’s continued participation in the rental program is a time-limited or otherwise tenuous expectation subject to the annual exercise of discretion on the part of the defendant.[28]

         Given that the plaintiff was properly admitted into the rental program as a sex offender, the use of his sex offender status, an event that preceded his entry into the rental program, his receipt of benefits, and the promulgation of § 17b-812-13 (9) of the regulations, to terminate his benefits constitutes a ‘‘new obligation’’ under § 55-3, and, therefore, a retroactive application of that regulation.[29] With no argument that such retroactive application of the regulation is statutorily authorized, we conclude that the trial court improperly dismissed the plaintiff’s administrative appeal. [30]

         The judgment is reversed and the case is remanded to the trial court with direction to sustain the plaintiff’s appeal.

          In this opinion ROGERS, C. J., and PALMER and ZARELLA, Js, concurred.

          ESPINOSA, J., dissenting.

         I respectfully disagree with the majority’s conclusion that the decision of the defendant, 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 application 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 constitutes ‘‘a new obligation’’ on the plaintiff’s status as a registered sex offender. I do not agree that the defendant’s decision involved retroactive application of § 17b-812-13 (9) of the regulations to the plaintiff. Instead, I conclude that the defendant properly terminated rental assistance to the plaintiff upon learning that the plaintiff is subject to lifetime sex offender registration. The plain language of § 17b-812-13 of the regulations 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 assistance, I respectfully dissent.

         In its opinion, the majority adopts the plaintiff’s contention 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 retroactively 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 discretion to terminate rental assistance to a present participant 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 impermissively 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 construction, 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 Revenue 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 circumstances 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 Commissioner 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 benefits 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 demonstrates that the defendant has the authority to terminate 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 directory 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 quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 122; see Commission 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) (recognizing 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 program 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 status 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 conviction, 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 terminate 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 participant 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 Regulations 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 defendant to terminate rental assistance to program participants in the very manner in which she did so in regard to the plaintiff.

         The majority, however, determines that the termination 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 retroactive application of the regulation. As I have explained, the regulation provides the defendant with the discretion to terminate current rental assistance benefits whenever a participant falls within one of the nine outlined scenarios. See Regs., Conn. State Agencies § 17b-812-13. The majority endorses the plaintiff’s premise for retroactivity, namely, that application of the regulation to the plaintiff imposed an ...


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