Shannon v. Commissioner of Housing , 322 Conn. 191 ( 2016 )

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FRANCIS SHANNON v. COMMISSIONER
OF HOUSING
(SC 19562)
Rogers, C. J., and Palmer, Zarella, Espinosa and Robinson, Js.
Argued February 23—officially released August 2, 2016
Cecil J. Thomas, for the appellant (plaintiff).
Alan N. Ponanski, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, 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.
Opinion
ROBINSON, J. The defendant, the Commissioner of
Housing,1 administers the state rental assistance pro-
gram (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), pro-
vides ‘‘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,
appeals4 from the judgment of the trial court dismissing
his administrative appeal from the decision of the defen-
dant 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 rele-
vant statutes, regulations, and agency policies demon-
strate 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 termi-
nation 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 assis-
tance 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 con-
tractor 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 admin-
istrative 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] bene-
fits.’’8 Accordingly, the defendant ordered the termina-
tion 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 regula-
tions 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 embodied in General Stat-
utes § 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 regula-
tions 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 dis-
ability in respect to transactions or considerations
already past . . . .’’ (Internal quotation marks omit-
ted.) Landgraf v. USI Film Products, supra, 511 U.S.
269. The plaintiff contends that the trial court’s determi-
nation 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 Retire-
ment 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 inter-
est 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 pro-
spective 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 bene-
fits] 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 fur-
ther 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 discre-
tion to deny or terminate assistance. Thus, the defen-
dant contends that the plaintiff had ‘‘no ‘settled
expectation’ or ‘reasonable reliance’ on his ongoing par-
ticipation in [the rental program],’’ and that the plain-
tiff’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 retroac-
tive 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 ple-
nary 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 Tele-
phone, 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 con-
tained 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 sub-
stantive 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 ‘man-
ifestly 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 interpreta-
tion 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 ret-
roactive [rule making] is presented, courts should be
reluctant to find such authority absent an express statu-
tory 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 con-
ferred 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.’’ Dura-
ble Mfg. Co. v. United States Dept. of Labor, supra, 578
F.3d 503.
Because the defendant does not argue that the legisla-
ture 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 assis-
tance 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 lead-
ing articulation of when a new law has been applied
retroactively. ‘‘While statutory retroactivity has long
been disfavored, deciding when a statute operates ‘ret-
roactively’ 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 con-
nection 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. ‘‘How-
ever, retroactivity is a matter on which judges tend to
have sound . . . instinct[s] . . . and familiar consid-
erations 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 pre-
sumption against statutory retroactivity has consis-
tently 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 appli-
cation,’’ including that ‘‘individuals should have an
opportunity to know what the law is and to conform
their conduct accordingly’’ and that ‘‘settled expecta-
tions 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 contem-
plate when they were performed’’ [internal quotation
marks omitted]). The court observed that ‘‘[t]he largest
category of cases in which we have applied the pre-
sumption 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 Rude-
wicz 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.’’ Dura-
ble 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 defen-
dant’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 repay-
ment 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 health-
care providers who had certain criminal convictions,
and conclude that the application of that statute to
providers who had preexisting convictions was not ret-
roactive. 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 earn-
ings 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, focus-
ing 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 anal-
ysis.’’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 res-
idents 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 conse-
quence’ ’’ 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 discre-
tionary relief from deportation, ‘‘remains available for
aliens . . . whose convictions were obtained through
plea agreements and who, notwithstanding those con-
victions, 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 cre-
ating 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 ‘‘dis-
positive 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 attor-
ney, 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 bene-
fits, 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 adminis-
trative 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 certifi-
cation 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 ‘‘perma-
nently 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 show-
ing 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 ‘‘can-
not 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 pro-
tected property interest’’).
We begin with the enabling statute, § 8-345; see foot-
note 2 of this opinion; which requires the defendant to
‘‘implement and administer a program of rental assis-
tance 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 eligibil-
ity 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 certifi-
cates 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 circum-
stances results in ineligibility prior to execution of the
rental assistance contract. The commissioner may sus-
pend 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 recipi-
ents’ enrollment in the rental program, once they have
requested and received approval of appropriate housing
within the period prescribed by the admission regula-
tion; 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 eligibil-
ity. Although § 17b-812-9 of the Regulations of Connecti-
cut State Agencies22 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 enroll-
ment 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 participat-
ing . . . .’’ 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 termina-
tion 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 continua-
tion of benefits’’ insofar as the rental program has ‘‘spe-
cific 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 termi-
nate 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 guar-
antee 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.’’). Sec-
ond, 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 termi-
nate 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 admin-
istrative plan supports the defendant’s argument that,
once admitted and given the benefit of an executed
rental assistance contract; see Regs., Conn. State Agen-
cies § 17b-812-2 (b); a recipient’s continued participa-
tion 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 pro-
mulgation of § 17b-812-13 (9) of the regulations, to ter-
minate 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 plain-
tiff’s appeal.
In this opinion ROGERS, C. J., and PALMER and
ZARELLA, Js., concurred.
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
Formerly codified as General Statutes § 17b-812, General Statutes (Supp.
2016) § 8-345 provides in relevant part: ‘‘(a) The Commissioner of Housing
shall implement and administer a program of rental assistance for low-
income families living in privately-owned rental housing. For the purposes
of this section, a low-income family is one whose income does not exceed
fifty per cent of the median family income for the area of the state in which
such family lives, as determined by the commissioner.
‘‘(b) Housing eligible for participation in the program shall comply with
applicable state and local health, housing, building and safety codes.
‘‘(c) In addition to an element in which rental assistance certificates are
made available to qualified tenants, to be used in eligible housing which
such tenants are able to locate, the program may include a housing support
element in which rental assistance for tenants is linked to participation by
the property owner in other municipal, state or federal housing repair,
rehabilitation or financing programs. The commissioner shall use rental
assistance under this section so as to encourage the preservation of existing
housing and the revitalization of neighborhoods or the creation of additional
rental housing.
‘‘(d) The commissioner may designate a portion of the rental assistance
available under the program for tenant-based and project-based supportive
housing units. To the extent practicable rental assistance for supportive
housing shall adhere to the requirements of the [section 8 program] . . .
relative to calculating the tenant’s share of the rent to be paid.
‘‘(e) The commissioner shall administer the program under this section
to promote housing choice for certificate holders and encourage racial
and economic integration. The commissioner shall establish maximum rent
levels for each municipality in a manner that promotes the use of the program
in all municipalities. Any certificate issued pursuant to this section may be
used for housing in any municipality in the state. The commissioner shall
inform certificate holders that a certificate may be used in any municipality
and, to the extent practicable, the commissioner shall assist certificate
holders in finding housing in the municipality of their choice.
‘‘(f) Nothing in this section shall give any person a right to continued
receipt of rental assistance at any time that the program is not funded.
‘‘(g) The commissioner shall adopt regulations in accordance with the
provisions of chapter 54 to carry out the purposes of this section. The
regulations shall 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. . . .’’
We note that § 8-345 has been amended by the legislature subsequent to
the events underlying the present appeal. See, e.g., Public Acts 2015, No.
15-29, § 3. Those amendments, however, have no bearing on the merits of
the present appeal. For the sake of convenience, references to § 8-345 are
to the 2016 supplement of the statute.
3
Section 17b-812-13 of the Regulations of Connecticut State Agencies
provides: ‘‘The department or its agent may deny program assistance to an
applicant or terminate assistance to a participant for any of the following
reasons:
‘‘(1) A household family member fails to comply with the provisions of
section 17b-812-12 of the Regulations of Connecticut State Agencies;
‘‘(2) a household family member fails to sign or submit required forms;
‘‘(3) a family with a rental assistance certificate fails to locate an approved
dwelling unit within one hundred eighty days and does not demonstrate good
cause for extending the expiration date of the rental assistance certificate;
‘‘(4) a household family member has been terminated from a department
rental assistance program in the last three years;
‘‘(5) a household family member refuses to enter into a repayment
agreement for monies owed to the department or its agent as a result of a
program violation;
‘‘(6) a household family member currently owes rent or other monies to
the department or its agent in connection with a rental subsidy program;
‘‘(7) a household family member has engaged in or threatened abusive
or violent behavior towards the department or its agent’s personnel;
‘‘(8) a family fails to report income that results in rental assistance overpay-
ment in excess of two thousand five hundred dollars; or
‘‘(9) a household family member is subject to a registration requirement
under a state or federal sex offender registration program.’’
4
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
5
The plaintiff was first required to register as a sex offender in 1997, after
he pleaded guilty in New Jersey to aggravated criminal sexual contact and
endangering the welfare of children in violation of N.J. Stat. Ann. §§ 2C:14-
3 (a) and 2C:24-4 (a) (West 1997). See also General Statutes § 54-253 (recipro-
cal sex offender registration). At the time the plaintiff entered the rental
assistance program, he also was subject to a separate registration obligation
arising from an offense committed in Connecticut, namely, a June 1, 2000
conviction for public indecency with a minor victim in violation of General
Statutes § 53a-186. We note that his obligation to register as a result of that
offense expired on October 6, 2010.
6
The administrative plan sets forth policies for the implementation of the
rental program in accordance with the regulations. When the plaintiff was
admitted into the rental program in February, 2009, the numerous grounds
for termination or denial of assistance were not promulgated as a regulation,
but rather were set forth as policies in the 2008 revision of the administrative
plan. See Dept. of Social Services, Administrative Plan for the Rental Assis-
tance Program (July 1, 2008) pp. 15-1 through 15-3. Prior to the promulgation
of § 17b-812-13 (9) of the regulations, the Department of Social Services
added sex offender registration as a ground for termination or denial in
the 2011 revision of the administrative plan. See Dept. of Social Services,
Administrative Plan for the Rental Assistance Program (July 1, 2011) pp.
15-1 through 15-2.
7
After assuming responsibility for the rental program, the defendant
issued the 2015 revision of the administrative plan. See Dept. of Housing,
Administrative Plan for the Rental Assistance Program (July 1, 2015). That
plan, consistent with § 17b-812-13 (9) of the regulations, retains sex offender
registration as a ground for the termination or denial of rental program
assistance. Id., pp. 15-1 through 15-2.
8
The decision acknowledged that the defendant was ‘‘not required to
terminate [rental program] assistance if one or more of the enumerated
conditions set forth in . . . § 17b-812-13 [of the regulations] is met, but
ha[d] the discretion to do so.’’ The decision stated that, its reasoning was
informed by a review of the plaintiff’s file ‘‘as well as all other related
materials submitted by [the plaintiff’s] counsel’’ and had ‘‘considered the
following factors: [1] that [the plaintiff] is legally blind, [2] has other medical
issues, [3] is listed on the [s]tate’s [s]ex [o]ffender [r]egistry, [4] the nature
of his offenses that led to such listing, and [5] the length of time that has
passed since his convictions.’’
9
The trial court observed that ‘‘it would be absurd to contend that the
plaintiff had any expectation in 1997 that his conviction for endangering
the welfare of children would lead to a termination of [rental program]
benefits in 2013 or that, in contesting that conviction, he placed any reliance
on the notion that a conviction would lead to his ineligibility for those
benefits.’’
10
The trial court also rejected the plaintiff’s claims that the defendant
had improperly: (1) deprived him of a hearing before rendering the May 1,
2014 decision; (2) been influenced by the staff of John D’Amelia Associates;
(3) received ex parte communications in violation of General Statutes § 4-
181; (4) failed to exercise discretion to consider mitigating factors; and (5)
applied the regulation in a manner that violated his substantive due process
rights by impermissibly impairing his vested property right to receive rental
program benefits.
11
The trial court subsequently denied the plaintiff’s motion for an appellate
stay of the trial court’s judgment pursuant to Practice Book § 61-12. Prior
to the transfer of this appeal to this court; see footnote 4 of this opinion;
the Appellate Court upheld the trial court’s appellate stay decision when it
granted the plaintiff’s motion for review, but denied the relief requested.
12
The plaintiff also claims that the trial court improperly concluded that
the defendant did not: (1) violate his due process rights by rendering a final
decision without affording him a hearing; and (2) receive prejudicial ex parte
communications in violation of General Statutes § 4-181 and due process
protections. Because of our conclusion with respect to the plaintiff’s retroac-
tivity claim, we need not reach these other issues.
13
General Statutes § 55-3 provides: ‘‘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.’’
14
With the permission of this court, numerous amici curiae have filed a
joint brief in support of the plaintiff, amplifying his argument that, ‘‘[e]xperts
increasingly recognize that piling additional collateral consequences onto
a sex offender registration requirement simply serves to destabilize prior
offenders without offering any concurrent benefits.’’ The amici are: the First
Church of Christ in Hartford; the City of New Haven Project Fresh Start
Reentry Program; Columbus House, Inc.; Community Partners in Action,
Inc.; Connecticut Association for the Treatment of Sexual Offenders, Inc.;
Connecticut Coalition to End Homelessness, Inc.; the Connecticut Confer-
ence of the United Church of Christ; Connecticut Criminal Defense Lawyers
Association; National Alliance on Mental Illness Connecticut; National Coali-
tion for the Homeless; National Law Center on Homelessness and Poverty;
New Haven Legal Assistance Association, Inc.; Quinnipiac University School
of Law Civil Justice Clinic; Reentry Central; Reform Sex Offender Laws;
and Tri-Cord, LLC.
Although the arguments of the amici are thoughtfully crafted, they raise
public policy considerations that are the primary province of the two political
branches, and do not directly inform the administrative law questions that
we must resolve in this appeal. Indeed, as their brief indicates, whether sex
offender registries and provisions such as § 17b-812-13 (9) of the regulations
constitute good public policy is ‘‘the kind of issue that is squarely on the
radar of the legislature and the various interested entities.’’ Commissioner
of Public Safety v. Freedom of Information Commission, 312 Conn. 513,
551 n.35, 93 A.3d 1142 (2014); see also State v. Arthur H., 288 Conn. 582,
588 n.4, 953 A.2d 630 (2008) (social science studies demonstrating that
‘‘ ‘[t]he popular myth that sex offenders reoffend at significantly higher rates
than the remaining criminal population . . . is demonstrably false’ ’’ may
‘‘be worthy of further consideration,’’ but are ‘‘essentially policy arguments
that more properly are raised before our state legislature in support of
reconsideration and reformation of the statutory scheme governing sex
offender registration’’).
15
‘‘In civil cases, however, unless considerations of good sense and justice
dictate otherwise, it is presumed that procedural statutes will be applied
retrospectively. . . . While there is no precise definition . . . it is generally
agreed that a substantive law creates, defines and regulates rights while a
procedural law prescribes the methods of enforcing such rights or obtaining
redress. . . . Procedural statutes . . . therefore leave the preexisting
scheme intact. . . . [A]lthough we have presumed that procedural or reme-
dial statutes are intended to apply retroactively absent a clear expression
of legislative intent to the contrary . . . a statute which, in form, provides
but a change in remedy but actually brings about changes in substantive
rights is not subject to retroactive application.’’ (Citations omitted; internal
quotation marks omitted.) Investment Associates v. Summit Associates,
Inc., 309 Conn. 840, 868, 74 A.3d 1192 (2013).
16
We note that the defendant also does not challenge the plaintiff’s con-
tention that the legislature has not expressly conferred retroactive rule-
making power on the defendant with respect to the rental program. Instead,
the defendant argues that the trial court properly declined to reach the issue
because it correctly concluded that the application of § 17b-812-13 (9) of
the regulations was prospective.
17
We previously have found the principles of Landgraf and its progeny
instructive in retroactivity cases. See, e.g., State v. Skakel, 276 Conn. 633, 684
n.46, 888 A.2d 985 (discussing Landgraf in determining nature of extension of
criminal statute of limitations), cert. denied, 549 U.S. 1030, 127 S. Ct. 578,
166 L. Ed. 2d 428 (2006); State v. Faraday, 268 Conn. 174, 196–97, 842 A.2d
567 (2004) (relying on Immigration & Naturalization Service v. St. Cyr,
supra, 533 U.S. 289, in determining whether probation statute was being
applied retroactively); accord Massa v. Nastri, 125 Conn. 144, 148, 3 A.2d
839 (1939) (‘‘A statute will not be given a retroactive construction by which
it will impose liabilities not existing prior to its passage. Laws which create
new obligations . . . because of past transactions, have been universally
reprobated by civil and common law writers, and it is to be presumed that
no statute is intended to have such effect unless the contrary clearly appears.
. . . The rule that laws are not to be construed as applying to cases which
arise before their passage is applicable when to disregard it would impose
an unexpected liability that if known might have caused those concerned
to avoid it.’’ [Citations omitted; internal quotation marks omitted.]).
Nevertheless, we observe that the distinction between substantive and
procedural effects that we have consistently examined as a frame of refer-
ence to determine the applicability of the presumption against retroactivity;
see footnote 15 of this opinion; has been described as outmoded in light of
the more flexible analysis set forth in Landgraf. See Stone v. Hamilton,
308 F.3d 751, 755 n.4 (7th Cir. 2002); cf. Miano v. Thorne, 218 Conn. 170,
175–76, 588 A.2d 189 (1991) (‘‘a statute which, in form, provides but a change
in remedy but actually brings about changes in substantive rights is not
subject to retroactive application’’ [internal quotation marks omitted]).
Because there is no claim that the regulation in this case is procedural, we
need not explore the extent to which the dichotomy between substance and
procedure retains persuasive value post-Landgraf as a matter of state law.
18
Specifically, we note that in Bhalerao, the court held that the statute,
which revoked the plaintiff’s right to practice medicine, ‘‘does not impose
‘new legal consequences’ to ‘completed events’ such as [the] [p]laintiff’s
conviction or his practice of medicine in the years since that conviction.
Rather, the statute looks prospectively at [the] [p]laintiff’s right to continue
practicing medicine in the future. See also [Immigration & Naturalization
Service] v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 82 L. Ed.
2d 778 (1984) (characterizing deportation as ‘look[ing] prospectively to the
respondent’s right to remain in this country in the future’).’’ Bhalerao v.
Illinois Dept. of Financial & Professional Regulations, supra, 834 F. Supp.
2d 783. In so concluding, the court stated that the statute ‘‘creates present
and future effects on present and future conduct, and has no effect on past
conduct,’’ relying, in particular, on an observation by the United States Court
of Appeals for the Seventh Circuit that ‘‘[i]t would border on the absurd to
argue that these aliens might have decided not to commit drug crimes, or
might have resisted conviction more vigorously, had they known that if they
were not only imprisoned but also, when their prison term ended, ordered
deported, they could not ask for a discretionary waiver of deportation.’’
(Internal quotation marks omitted.) Id., 783–84, quoting LaGuerre v. Reno,
164 F.3d 1035, 1041 (7th Cir. 1998).
19
Specifically, we first observe that, in Immigration & Naturalization
Service v. St. Cyr, supra, 533 U.S. 324, the Supreme Court significantly
narrowed its prior characterization of deportation as ‘‘look[ing] prospec-
tively to the respondent’s right to remain in this country in the future’’;
Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032,
1038, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984); a phrase that was specifically
relied upon in Bhalerao v. Illinois Dept. of Financial & Professional Regula-
tions, supra, 834 F. Supp. 2d 783. The Supreme Court stated in St. Cyr
that Lopez-Mendoza simply ‘‘reject[ed] the argument that deportation is
punishment for past behavior and that deportation proceedings are therefore
subject to the various protections that apply in the context of a criminal
trial. . . . As our cases make clear, the presumption against retroactivity
applies far beyond the confines of the criminal law. . . . And our mere
statement that deportation is not punishment for past crimes does not mean
that we cannot consider an alien’s reasonable reliance on the continued
availability of discretionary relief from deportation when deciding whether
the elimination of such relief has a retroactive effect.’’ (Citations omitted;
internal quotation marks omitted.) Immigration & Naturalization Service
v. St. Cyr, supra, 324.
Second, the superficial reliance analysis in Bhalerao is directly under-
mined by the Supreme Court’s decision in Vartelas, which criticized as
‘‘doubly flawed’’ the suggestion of the United States Court of Appeals for
the Second Circuit that ‘‘ ‘[i]t would border on the absurd . . . to suggest
that [the plaintiff] committed his counterfeiting crime in reliance on the
immigration laws.’ ’’ Vartelas v. Holder, supra, 132 S. Ct. 1490. In Vartelas,
the Supreme Court emphasized that reliance matters only insofar as it relates
to Landgraf’s ‘‘essential inquiry,’’ namely, ‘‘ ‘whether the new provision
attaches new legal consequences to events completed before its enact-
ment.’ ’’ Id., 1491. The Supreme Court emphasized that, ‘‘[w]hile the presump-
tion against retroactive application of statutes does not require a showing
of detrimental reliance . . . reasonable reliance has been noted among the
‘familiar considerations’ animating the presumption . . . . Although not a
necessary predicate for invoking the antiretroactivity principle, the likeli-
hood of reliance on prior law strengthens the case for reading a newly
enacted law prospectively.’’ (Citations omitted.) Id.
20
‘‘‘[D]ouble dipping’ ’’ is the colloquial term for the ‘‘collection by one
person of a pension and a salary, both paid by the state.’’ Gormley v. State
Employees Retirement Commission, supra, 216 Conn. 527.
21
Section 17b-812-5 of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(c) When the department or its agent determines
that a family is eligible for rental assistance, the department or its agent
shall issue the family a rental assistance certificate. The department or its
agent shall inform the family of the family’s obligations under the program
as well as the responsibilities of the owner of the dwelling unit, and shall
provide the family with applicable forms and information that may assist
the family in finding a suitable dwelling unit.
‘‘(d) The rental assistance certificate shall be used within ninety days of
issuance. The department or its agent may extend the expiration date of
the certificate in one or more increments, such extensions not to exceed a
total of ninety days. The certificate holder shall have a maximum of one
hundred eighty days to locate a suitable dwelling unit unless the department
or its agent finds good cause to extend the maximum period.
‘‘(e) The ninety day time limit stops running on the day the department
or its agent receives a request for tenancy approval. If for any reason the
dwelling unit cannot be approved, then the certificate holder shall be notified
and the time limit shall resume running on the date notice is mailed . . . .’’
22
Section 17b-812-9 of the Regulations of Connecticut State Agencies
provides: ‘‘(a) The department or its agent shall conduct an annual reexami-
nation of the income and family composition of families participating in the
rental assistance program. The department or its agent shall adjust the
amount of each family’s assistance payment at the time of the annual reexam-
ination to reflect changes in the family’s adjusted gross income.
‘‘(b) During the term of the eligible family’s rental agreement, the eligible
family shall report changes in income or any change in family composition
to the department or its agent within thirty days.’’
23
The defendant’s reliance on the annual reexamination process as pre-
scribed by the administrative plan rings particularly hollow, given that the
defendant supports it only with a single citation to the table of contents of
the 2008 administrative plan. As the plaintiff accurately notes in his reply
brief, nothing in the administrative plan is inconsistent with the absence in
the statute or regulations of a stated limitation on a term of enrollment
in the rental program generally. Indeed, consistent with the regulation it
implements; see Regs., Conn. State Agencies § 17b-812-9; that portion of the
administrative plan prescribes only the following annual activities to be
‘‘coordinated around the anniversary date of the [rental program] contract’’:
(1) ‘‘[r]eexamination of income and family composition’’; (2) housing quality
inspections; (3) ‘‘[n]ew [l]ease [a]greement [a]ddendum signed by tenant
and owner’’; and (4) ‘‘[r]ent to owner adjustment (must be under [median
area rent], must not exceed reasonable rent).’’ Dept. of Social Services,
Administrative Plan for the Rental Assistance Program (July 1, 2011) p. 12-
1; see id., pp. 12-1 through 12-8.
By way of further background, we note that the introduction to chapter
12 of the 2011 revision of the administrative plan provides: ‘‘The [housing
authority] will [reexamine] the income and household composition of all
families at least annually. Families will be provided accurate annual and
interim rent adjustments. [Reexaminations] and [i]nterim examinations will
be processed in a manner that ensures families are given reasonable notice
of rent increases. All annual activities will be coordinated in accordance
with [housing authority] policy. It is a requirement that families report
all changes in household composition. This chapter defines the [housing
authority’s] policy for conducting annual [reexaminations] and coordinating
annual activities. It also [e]xplains the interim reporting requirements for
families, and the standards for timely reporting.’’ Id., p. 12-1
24
Once a family deemed eligible for the rental program locates a ‘‘dwelling
unit for rent,’’ it must submit a ‘‘request for tenancy approval’’ to the defen-
dant, along with ‘‘a copy of the proposed rental agreement . . . .’’ Regs.,
Conn. State Agencies § 17b-812-8 (a). The defendant then determines
whether: (1) the proposed contract rent accords with the applicable sched-
ules; and (2) the dwelling unit satisfies the applicable quality standards. See
id. Once the defendant approves the arrangement, it notifies the family and
enters into a ‘‘rental assistance contract’’ with the property owner, under
which the defendant pays for the designated portion of the family’s rent.
See id., § 17b-812-8 (c).
25
Section 17b-812-12 of the Regulations of the Connecticut State Agencies
provides in relevant part: ‘‘(b) A family shall:
‘‘(1) Provide information that is true and complete and in compliance
with the provisions of the rental assistance certificate;
‘‘(2) provide all forms and documents necessary for use in a regularly
scheduled reexamination or interim reexamination of family income and
composition;
‘‘(3) provide the social security numbers of all household members and
sign and submit forms that will allow the department or its agent to obtain
information to determine eligibility;
‘‘(4) not later than thirty days after a request by the department or its
agent, provide the department or its agent information to verify that the
family is living in the dwelling unit or information related to family absence
from the dwelling unit;
‘‘(5) notify the department or its agent in writing before any planned
absence of thirty days or more, or on or before the thirtieth consecutive
day of any unplanned absence. If the entire family is absent from the unit
for more than ninety consecutive days, the department shall consider the
unit vacated and shall terminate rental assistance, unless the family has
notified the department or its agent on or before the thirtieth day of any
absence and can show good cause for the extended absence on or before
the ninetieth day of any absence. If the family shows good cause, the depart-
ment or its agent may permit the family to be absent for up to sixty additional
days before considering the unit to be vacated;
‘‘(6) notify the department or its agent in writing not later than thirty days
before moving out of the dwelling unit or terminating the lease;
‘‘(7) use the dwelling unit as the family’s sole residence;
‘‘(8) notify the department or its agent in writing of the birth, adoption
or court-awarded custody of a child, not later than thirty days after such
birth, adoption or court-awarded custody;
‘‘(9) request written approval from the department or its agent before
adding any other adult family member as an occupant of the dwelling unit;
‘‘(10) notify the department or its agent in writing if any member no longer
lives in the dwelling unit, not later than thirty days after such member leaves;
‘‘(11) allow the department or its agent to inspect the dwelling unit at
reasonable times and after reasonable notice as part of regularly scheduled
reexaminations, interim examinations and on other occasions deemed neces-
sary by the department or its agent;
‘‘(12) immediately notify and forward to the department or its agent a
copy of any notice to quit received by the tenant; and
‘‘(13) pay utility bills and supply appliances that the owner is not required
to provide under the rental agreement.
‘‘(c) The family, including each family member, shall not:
‘‘(1) Own or have any interest in the dwelling unit other than in a coopera-
tive, or as the owner of a mobile manufactured home leasing space in a
mobile manufactured home park, as such terms are defined in section 21-
64 of the Connecticut General Statutes;
‘‘(2) commit any serious or repeated violation of the rental agreement;
‘‘(3) commit fraud, bribery or any other corrupt or criminal act in connec-
tion with the rental assistance program;
‘‘(4) participate in any illegal drug or violent criminal activity leading to
the individual’s conviction;
‘‘(5) sublease the dwelling unit;
‘‘(6) receive rental assistance while receiving another housing subsidy for
the same dwelling unit or a different dwelling unit under any other state,
federal or local housing assistance program; or
‘‘(7) willfully damage the dwelling unit or premises or cause serious or
repeated damage to the dwelling unit or premises through negligence, or
permit any guest to willfully damage the dwelling unit or premises or cause
serious or repeated damage to the dwelling unit or premises through neg-
ligence.’’
26
To this end, the dissent expresses concern about the potentially expan-
sive effect of this decision on those persons who were registered as sex
offenders prior to 2012, and are seeking, but have not yet received, rental
program benefits. The dissent’s concerns are unfounded, because, as the
remainder of § 17b-812-2 (b) of the regulations makes clear, the ‘‘non-entitle-
ment’’ aspect of the rental program is based on its limited nature, wherein
the granting official is not obligated to provide benefits to all eligible appli-
cants. See, e.g., Colson v. Sillman, supra, 35 F.3d 108–109 (applicants for
benefits for physically disabled children lacked property interest because
provision of benefits was entirely within discretion of public health authori-
ties); cf. Kapps v. Wing, 404 F.3d 105, 114–16 (2d Cir. 2005) (applicants for
public utility assistance benefits have entitlement and property interest
subject to due process protection because governing regulations did not
afford local authorities discretion to decline to assist eligible applicants).
Indeed, limiting a program to available funds does not defeat a claim of
entitlement. See id., 118 (utility benefits recipients’ ‘‘claim of entitlement—
while funds remain available—is the same as it would be were the program
not contingent on the availability of sufficient funds’’). Insofar as neither
the defendant nor the dissent points to any statute, regulation, or policy
putting current recipients seeking renewal in the same place as a first time
applicant; see, e.g., Barry v. Little, 669 A.2d 115, 122 (D.C. 1995), cert.
denied, 519 U.S. 1108, 117 S. Ct. 942, 136 L. Ed. 2d 832 (1997); the ‘‘non-
entitlement’’ pronouncement in § 17b-812-2 (a) of the regulations has no
bearing on the vested right component of the retroactivity inquiry in the
present case.
27
In particular, the defendant relies on a provision in the 2011 revision
of the administrative plan entitled ‘‘Housing Authority Discretion’’ that pro-
vides as follows:
‘‘In deciding whether to deny or terminate assistance because of action
or failure to act by members of the family, the [housing authority] has
discretion to consider all of the circumstances in each case, including the
seriousness of the case. The [housing authority] will use its discretion in
reviewing, the extent of participation or culpability of individual family
members, the length of time since the violation occurred. The [housing
authority] may also review the family’s recent history and record of compli-
ance, and the effects of denial or termination of assistance on other family
members who were not involved in the action or failure to act.
‘‘The [housing authority] may impose, as a condition of continued assis-
tance for other family members, a requirement that family members who
participated in or were culpable for the action or failure will not reside in
the unit. The [housing authority] may permit the other members of a family
to continue in the program.’’ Dept. of Social Services, Administrative Plan
for the Rental Assistance Program (July 1, 2011) p. 15-5.
28
The defendant argues that this characterization of the rental program
leads to an ‘‘absurd result,’’ because it would entitle the plaintiff ‘‘to a steady
stream of [rental program] payments without limitation simply because he
was initially found eligible for the program,’’ and that ‘‘if the income level
requirements for [rental program] participation were to change from one
year to the next, a participant would be entitled to stay on the program
indefinitely simply because he qualified at one time.’’ We disagree. First,
there is no vested right to a particular level of benefit payment in perpetuity,
insofar as the regulations specifically contemplate adjustment of benefits
in connection with the annual reexamination of income and family composi-
tion. See Regs., Conn. State Agencies § 17b-812-9; see also footnote 22 of
this opinion. Indeed, even if a family retains its certificate to participate in the
rental program despite a significant increase in income, the corresponding
reduction in the rent benefit provided would protect the public fisc and
perhaps provide the budget room for the admittance of another family into
the rental program. See Dept. of Social Services, Administrative Plan for
the Rental Assistance Program (July 1, 2011) pp. 12-1 through 12-3; see also
id., p. 8-1 (providing for overissuance of rental program certificates ‘‘to the
extent necessary to meet leasing goals’’ and for response to overleasing by
‘‘adjust[ment of] future issuance of certificates in order not to exceed the
budget limitations over the fiscal year’’). As the plaintiff points out, neither
the regulations nor the administrative plan call for annual reassessment of
the participants’ ‘‘continued eligibility’’ for the program itself on income
limits grounds, ‘‘unless the family is moving under portability and changing
their form of assistance.’’ Id., p. 12-2.
29
Comparing the text of § 17b-812-13 (9) of the regulations to the federal
statutes and regulations governing the section 8 program; see 42 U.S.C.
§§ 13663 (a) and 13664 (a) (2) (B); 24 C.F.R. §§ 982.552 (b) and 982.553 (a)
(2) (i); the defendant argues that the text and legislative history of the state
regulations supports an interpretation that allows for termination based on
sex offender status. Compare Miller v. McCormick, supra, 605 F. Supp. 2d
310 (concluding that statute and federal regulations governing section 8
program, ‘‘as they are written . . . do not allow the [housing authority] to
cull from the participant population lifetime registrants whom it could have
denied admission’’), with Zimbelman v. Southern Nevada Regional Housing
Authority, 111 F. Supp. 3d 1148, 1154–55 (D. Nev. 2015) (concluding that
policy instructing housing authorities ‘‘to terminate registered sex offenders
if they are mistakenly let into the program’’ was consistent with regulation
allowing termination ‘‘for good cause’’ and enabling statutes under which
‘‘registered sex offenders could never make it into the housing program
because [42 U.S.C.] § 13663 prohibits their admission’’ and ‘‘Congress pre-
sumably would have no reason to include a termination provision to address
existing sex offender registrants who were never supposed to be in the
program in the first place’’). We agree with the dissent that, in contrast to
the federal provisions, that the state regulation allows termination on the
ground of registered sex offender status appears to be beyond cavil based
on its plain and unambiguous language. That, however, does not answer
the question before us in this appeal, namely, whether such application of
the regulation was impermissibly retroactive in this case, which concerns
a rental program participant who properly was admitted to the program
prior to the promulgation of § 17b-812-13 (9) of the regulations. See Immi-
gration & Naturalization Service v. St. Cyr, supra, 533 U.S. 325 n.55 (‘‘our
recognition that Congress has the power to act retrospectively in the immi-
gration context sheds no light on the question at issue at this stage of the
Landgraf analysis: whether a particular statute in fact has such a retroac-
tive effect’’).
30
The defendant contends that our conclusion will ‘‘prevent the govern-
ment from modifying its policy to serve other deserving constituencies with
limited dollars.’’ The dissent echoes this concern, raising concerns about
whether ‘‘more benign’’ acts committed prior to the promulgation of § 17b-
812-13 of the regulations might not be usable as cause for termination of
benefits; the dissent also posits that our analysis will ‘‘potentially caus[e]
some regulations to become frozen in time, thereby eroding the discretion
and flexibility of administrative agencies to provide continued public bene-
fits when faced with finite resources to do so.’’ We emphasize that these
concerns are wholly inconsistent with our narrow holding in this case. First,
although there is a property interest in the receipt of a public benefit so
long as it is available, without statutory terms restricting its authority to do
so, the legislature remains free to change or eliminate benefit entitlements
by amending or repealing the applicable statutes, including those that set
eligibility criteria. See, e.g., Atkins v. Parker, 472 U.S. 115, 128–29, 105 S.
Ct. 2520, 86 L. Ed. 2d 81 (1985) (food stamps); Story v. Green, 978 F.2d 60,
62–63 (2d Cir. 1992) (statutory exemption from municipal peddling regula-
tions). Indeed, the extent of the procedural due process required depends
on whether the change is an across-the-board adjustment to the formula,
which does not require particularized notice to each recipient; see Atkins
v. Parker, supra, 130; or whether the change is dependent on individual
facts and circumstances. See Youakim v. McDonald, 71 F.3d 1274, 1291–92
(7th Cir. 1995) (due process requires individualized hearings on licensure
applications before termination of benefits to children in existing ‘‘approved’’
homes following legislature’s decision to make licensure of homes manda-
tory), cert. denied, 518 U.S. 1028, 116 S. Ct. 2571, 135 L. Ed. 2d 1087 (1996).
Thus, should the defendant determine that potentially retroactive changes
to the rental program are beneficial to the program’s utility or viability,
subject to applicable constitutional protections; see, e.g., Doe v. Hartford
Roman Catholic Diocesan Corp., supra, 317 Conn. 439–40; the defendant’s
discretion is not, in the words of the dissent, necessarily ‘‘crippl[ed]’’; rather,
the defendant remains free to ask the legislature for the requisite authority
to promulgate retroactive regulations. See, e.g., Bowen v. Georgetown Uni-
versity Hospital, supra, 488 U.S. 208–209; Durable Mfg. Co. v. United States
Dept. of Labor, supra, 578 F.3d 503.