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SHANNON v. COMMISSIONER OF HOUSING—DISSENT

ESPINOSA, J., dissenting. Irespectfully 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 offenderregistration. 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 § 17b812-13 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 § 17b812-13 (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 § 17b812-12 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 § 17b812-13 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 § 17b812-13. The majority endorses the plaintiff’s premise

for retroactivity, namely, that application of the regulation to the plaintiff imposed an additional legal burden

on his sex offender status stemming from his 1997 conviction, the same conviction that requires the plaintiff

to remain registered as a sex offender in the present.2

This is an argument that the trial court properly

rejected.

As the United States Supreme Court has observed,

just because a statute ‘‘is applied in a case arising from

conduct antedating the statute’s enactment . . . or

upsets expectations based in prior law,’’ it does not

necessarily denote retroactivity. (Citation omitted.)

Landgraf v. USI Film Products, 511 U.S. 244, 269, 114

S. Ct. 1483, 128 L. Ed. 2d 229 (1994). In the trial court’s

view, it was ‘‘absurd’’ to argue that the plaintiff had any

expectation in 1997 that his conviction would lead to

a potential future inability to receive rental assistance

in 2013. I would agree with the trial court that § 17b812-13 (9) of the regulations is not retroactive merely

because the plaintiff’s presence on the sex offender

registry stems from a conviction that occurred prior to

the current regulation’s promulgation. See also Reynolds v. United States, 292 U.S. 443, 449, 54 S. Ct. 800,

78 L. Ed. 1353 (1934) (statute not retroactive ‘‘merely

because the facts or requisites upon which its subsequent action depends . . . are drawn from a time antecedent to the enactment’’); Cox v. Hart, 260 U.S. 427,

435, 43 S. Ct. 154, 67 L. Ed. 332 (1922) (‘‘[a] statute is

not made retroactive merely because it draws upon

antecedent facts for its operation’’); United States v.

Leach, 639 F.3d 773, 743 (7th Cir. 2011) (statute that

‘‘creates new, prospective legal obligations based on

the person’s prior history’’ is not retrospective).
Under the majority’s view, § 17b-812-13 (9) of the

regulations could not fairly be applied to the plaintiff

because his conviction leading to his sex offender registration occurred in 1997 and the new regulation was

promulgated in 2012. But then, is the same not true for

any other person seeking or currently receiving rental

assistance who is required to register as a sex offender

due to a conviction that occurred prior to 2012? And

if so, would not § 17b-812-13 (9) of the regulations therefore apply only to those registered sex offenders whose

underlying convictions occurred after 2012, in order to

not constitute a ‘‘new obligation’’ and thereby run amiss

of § 55-3? This result would seemingly apply to the other

subsections of § 17b-812-13 of the regulations that were

promulgated in 2012, most of which are for acts far

more benign than one that would warrant a participant’s

inclusion on the sex offender registry. For example,

§ 17b-812-13 (7) of the regulations provides the defendant with the authority to terminate rental assistance

to a participant who has engaged in violent behavior

toward the defendant’s personnel. Similarly, § 17b-812-

13 (8) of the regulations permits the defendant to terminate rental assistance to a participant who fails to report

a change in income that results in rental assistance

overpayments in excess of $2500. Under the majority’s

reasoning, the defendant is barred from terminating

the rental assistance benefits of participants who were

violent or collected excess assistance payments prior

to the promulgation of the new regulation in 2012

because at the time the participants committed such

acts they did not rely on the fact that, in deciding to

behave violently or accept overpayments, they would

face ineligibility for future benefits after 2012.

Indeed, the majority’s agreement with the plaintiff’s

argumentruns the risk of potentially causing some regulations to become frozen in time, thereby eroding the

discretion and flexibility of administrative agencies to

provide continued public benefits when faced with

finite resources to do so. As the defendant stated in

her brief, the Department of Housing is tasked with

administering a public benefit program for which there

is an overwhelming demand from citizens seeking assistance that greatly outpaces the defendant’s ability to

provide rental subsidies to all those who seek them.3

Given that the defendant has a limited amount of funds

to devote to the rental assistance program, the defendant must have the necessary discretion to deny applicants admission to the program and terminate the

benefits of those already admitted in order to reallocate

those funds to other persons in need of assistance.

Regulations such as § 17b-812-13 achieve this objective

by providing the defendant with discrete and articulable

criteria on which to deny or terminate rental assistance

without wading into the mire of arbitrary and unprincipled decision making. The majority’s approach has the

result of crippling the defendant’s discretionary admin-
istration of the rental assistance program—or, for that

matter, any other executive agency’s administration of

a public benefit program. This is particularly so under

the circumstances of the present case, where the defendant terminated the plaintiff’s benefits not on a whim

but pursuant to the articulable criteria contained in a

lawfully promulgated regulation.

In my view, a more fitting approach to this issue is

reflected in the series of Illinois medical licensing cases

cited by the defendant and on which the trial court

relied in part in reaching its decision that § 17b-812-13

of the regulations is not retroactive. See Bhalerao v.

Illinois Dept. of Financial & Professional Regulations,

834 F. Supp. 2d 775, 783 (N.D. Ill. 2011); Consiglio

v. Dept. of Financial & Professional Regulation, 988

N.E.2d 1020, 1029 (Ill. App. 2013), aff’d sub nom. Hayashi v. Dept. of Financial & Professional Regulation,

25 N.E.3d 570 (Ill. 2014), cert. denied, U.S. , 135

S.Ct. 2868, 192 L.Ed. 2d 897 (2015); Rodrigues v. Quinn,

990 N.E.2d 1179, 1182 (Ill. App. 2013). In Bhalerao, the

Illinois statute at issue required the automatic revocation of the medical license of any health-care professional who had been convicted of a criminal battery.

Bhalerao v. Illinois Dept. of Financial & Professional

Regulations, supra, 780. The plaintiff argued that the

statute operated retroactively because the termination

of his medical license was predicated on a criminal

conviction that occurred prior to the statute’s enactment. Id., 782–83. In rejecting the plaintiff’s claims, the

District Court observed that ‘‘it seems superficial to

argue that [the] [p]laintiff might have decided not to

commit the battery or might have resisted conviction

more vigorously had he known that he faced not only

criminal penalties but also might not be entitled to the

exercise of the [Illinois state agency’s] discretion in

regard to whether his license would be revoked.’’(Internal quotation marks omitted.) Id., 784; see LaGuerre v.

Reno, 164 F.3d 1035, 1041 (7th Cir. 1998) (invoking

similar reasoning in context of deportation), cert.

denied, 528 U.S. 1153, 120 S. Ct. 1157, 145 L. Ed. 2d

1069 (2000). The court in Bhalerao reasoned that the

statute at issue looked only ‘‘prospectively at [the]

[p]laintiff’s right to continue practicing medicine in the

future. . . . It does not impinge on the right that [the]

[p]laintiff had in the preceding years to practice—for

example, by divesting him of any profits that he earned

priorto its enactment or deeming unauthorized his practice of medicine during the time between his conviction

and the revocation of his license.’’ (Citation omitted.)

Bhalerao v. Illinois Dept. of Financial & Professional

Regulations, supra, 783.

The reasoning of Bhalerao and the other decisions

determining that the Illinois medical licensing statute

was not impermissibly retroactive has been relied on

in other contexts in which parties have raised the issue

of the retroactivity of statutes or regulations based on
conduct that occurred prior to their enactment or promulgation. See Smith v. Doe, 538 U.S. 84, 91, 105–106,

123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (upholding

inclusion of persons on sex offender registry whose

crimes were committed prior to passage of act establishing registry); Ohio Head Start Assn., Inc. v. United

States Dept. of Health & Human Services, 873 F. Supp.

2d 335, 348 (D.D.C. 2012)(regulation authorizing federal

agency to use antecedent data in order to determine

eligibility for future benefits was not retroactive), aff’d,

510 Fed. Appx. 1 (D.C. Cir. 2013); In re Sheneal W., 45

Conn. Supp. 586, 595, 728 A.2d 544 (1999) (legislature’s

use of present perfect tense in statute denotes intent

for court to consider actions of parents priorto statute’s

passage); Hernandez v. Dept. of State, Division of

Licensing, 629 So. 2d 205, 206 (Fla. App. 1993) (revocation of private investigator’s license on basis of felony

conviction that occurred prior to enactment of statute

requiring revocation was not retroactive), review

denied, 640 So. 2d 1107 (Fla. 1994); Wilson v. Dept. of

Financial & Professional Regulation, 991 N.E.2d 779,

783, 786 (Ill. App. 2013) (statute invoked to deny

renewal of mortgage loan originator license on basis

of tax fraud conviction not retroactive when plaintiff’s

conviction was prior to enactment of statute); Board

of Medical Examiners v. Nzedu, 228 S.W.3d 267, 272

(Tex. App. 2007) (statute permitting consideration of

applicant’s attempt to pass state medical licensing exam

prior to enactment of statute limiting permissible number of attempts was not unconstitutional and application of statute was not retroactive). The circumstances

of the present case are akin to these cases. The plaintiff

claims, and the majority agrees, that because the plaintiff’s sex offender registration requirement stemmed

from a 1997 conviction and the new regulation was

promulgated in 2012, then any application of the regulation to him is necessarily retroactive. The reasoning of

Bhalerao and the other authorities I have cited demonstrate that this is not the case, and that the plaintiff’s

sex offender status based on a prior conviction does not

render § 17b-812-13 (9) of the regulations retroactive.

That being said, however, I reemphasize my initial

point that the plain language of § 17b-812-13 of the regulations unambiguously provides the defendant with the

discretion to terminate rental assistance to program

participants who are currently subject to registration

as a sex offender. As the plaintiff was subject to registration when the defendant terminated his rental assistance, the plaintiff’s retroactivity concerns fail to

materialize in the present case.4 Accordingly, I would

affirm the judgment of the trial court dismissing the

plaintiff’s administrative appeal. Because the majority

opinion does not account for the defendant’s present

regulatory authority to terminate rental assistance to

those participants currently on a sex offender registry

and has the ultimate effect of curtailing the discretion
of the defendant in carrying out her statutory duties, I

respectfully dissent.

1 The Commissioner of Housing acts on behalf of the Department of

Housing. For the sake of simplicity, all references to the defendant hereinafter include both the commissioner and the department.

2 The plaintiff’s argument on this point in his brief is slightly more attenuated. The plaintiff reasons that because his inclusion on the sex offender

registry is the basis for the termination of his rental assistance benefits,

and the only reason he is on the registry in the first place is because of his

1997 conviction, the sole basis for the termination of his rental assistance

benefits, therefore, is actually his 1997 conviction. The plaintiff suggests

that relying on his presence on the sex offender registry is a ‘‘hyper-technical

bifurcation’’ of his conviction and his duty to register as a sex offender.

3 According to the defendant,there are currently more than 4000 applicants

on the waiting list for the rental assistance program.

4

I briefly observe that, in my view, the trial court properly rejected the

plaintiff’s additional claims that the defendant denied him due process in

terminating his rental assistance benefits. The administrative history of the

present case clearly establishes that the plaintiff was provided with notice

and a hearing in accord with the defendant’s own procedures as outlined

in § 17b-812-14 of the Regulations of Connecticut State Agencies. See Goldberg v. Kelly, 397 U.S. 254, 267–71, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).