Shannon v. Comm'r of Hous.

• Decision Date: 02 August 2016
• Docket Number: No. 19562.,19562.
• Citation: 140 A.3d 903,322 Conn. 191
• Court: Connecticut Supreme Court
• Parties: Francis SHANNON v. COMMISSIONER OF HOUSING.

322 Conn. 191

140 A.3d 903

Francis SHANNON

v.COMMISSIONER OF HOUSING.

No. 19562.

Supreme Court of Connecticut.

Argued Feb. 23, 2016.

Decided Aug. 2, 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.

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, appeals⁴ 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 embodied in 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. at 269, 114 S.Ct. 1483. 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. at 269–70, 114 S.Ct. 1483. 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] program 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...