Opinion
NNHCV165036426
01-03-2019
Kent OPPEL et al. v. Carlton GILES, Chairman of Board of Pardons and Parole
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The parties in this action are the plaintiffs Kent H. Oppel (Oppel) and Joseph Savanelli (Savanelli) and the defendant, Carlton Giles, Chairman of the Connecticut Board of Pardons and Parole (Giles).
On January 29, 2016, the plaintiffs filed a three-count complaint against the defendant, alleging that the Connecticut Board of Pardons and Parole (the Board) violated General Statutes § 4-166 et seq., Uniform Administrative Procedure Act (UAPA), when it created fifteen standard conditions of parole, each one of which constitutes a "regulation" for purposes of the UAPA, without following the rule-making procedures required pursuant to the UAPA. Compl., ¶ 17. The plaintiffs further allege that each of the standard conditions of parole interfere with or impair, or threaten to interfere with or impair, their right to remain at liberty on parole in violation of General Statutes § 4-167(b), the fifth and fourteenth amendments to the United States Constitution as well as the Constitution of Connecticut, article first, § § 8, 20. Compl., ¶ 18. The plaintiffs further allege that the standard conditions of parole each interfere with or impair, or threaten to interfere with or impair, the plaintiffs’ legal right or privilege to retain sentence reduction credit earned in accordance with General Statutes § 18-7 and/or § 18-7(a) in violation of General Statutes § 4-167(b), the fifth and fourteenth amendments to the United States Constitution as well as the Constitution of Connecticut, article first, § § 8, 20. Compl., ¶ 19.
The plaintiffs seek a declaratory judgment declaring that "(a) The Connecticut Board of Pardons and Parole is an ‘agency’ as ‘defined under § 4-166(1) of the Connecticut General Statutes in that it is ‘authorized by law’ to [adopt] ‘such rules and regulations’ as it deems necessary for the release of inmates on parole pursuant to § 54-126 of the Connecticut General Statutes; (b) the Board has exercised its discretionary authority to adopt such rules and regulations as it deems necessary for the release of inmates on parole in the form of a Parole Agreement specifying fifteen standard conditions of parole having the force of law at future administrative proceeding; (c) the Parole Agreement in general, and each standard condition of parole in particular is a ‘regulation’ [as] defined under § 4-166(15) of the Connecticut General Statutes in that it is a statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy having the force of law at future administrative proceedings held to determine whether the plaintiff has violated one or more of the standard conditions of parole; and (d) the Parole Agreement in general, and the fifteen standard conditions of parole in particular, has been formulated, adopted, and approved by the Board in violation of the rule-making procedure mandated under the Uniform Administrative Procedure Act and, therefore, said fifteen standard conditions of parole are, as a matter of law, unenforceable against the plaintiff(s) and may not be invoked by the Board, its agent(s) or employee(s) for any purpose." Pl.’s Complaint pp. 4-5.
On May 24, 2016, the plaintiffs filed the present motion for summary judgment as to Counts One, Two, and Three of the Complaint, asserting that because there is no genuine issue as to any material fact in dispute, "they are entitled to summary judgment as a matter of law as to the applicability of the UAPA to the Board and whether the Board has formulated, adopted, and approved regulations in the form of conditions of parole in violation of the UAPA rule-making requirements." Pls.’ Mot. pp. 8-9. The plaintiffs argue that the parole conditions constitute regulations because they will have a substantial impact on the rights and obligations of individuals regulated by the agency. Pls.’ Mot. p. 6. Further, they argue that said conditions are regulations because they are substantive rules that establish standards of conduct with the force of law. Pls.’ Mot. p. 7.
On August 7, 2018, the defendant filed an objection to the motion for summary judgment, arguing that a number of genuine issues of material facts remain in dispute, related to, and including, the issue of whether or not the plaintiffs are aggrieved, and thus whether the court has subject matter jurisdiction.
Argument was held on this Motion for Summary Judgment and the objection thereto on October 1, 2018.
II.
DISCUSSION
A. Summary Judgment Standard
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
B. Subject Matter Jurisdiction
As a preliminary matter, this court must address whether it has subject matter jurisdiction over the action. The defendant raises the issue of lack of subject matter jurisdiction in the objection to the plaintiffs’ motion for summary judgment. Specifically, the defendant argues that certain material facts exist, including but not limited to, whether the plaintiffs are aggrieved, whether the plaintiffs have suffered any actual injury from the alleged harm, and whether or not the alleged harm is too remote and speculative as to deprive the court of subject matter jurisdiction. It is well established that where a party raises the issue of lack of jurisdiction, the court has to "fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988).
The Appellate Court has stated that the fact a "plaintiff has no liberty interest that would allow him to file a habeas petition ... does not prevent him from pursuing a request for a declaratory judgment pursuant to General Statutes § 4-175." Vincenzo v. Chairman, Board of Parole, 64 Conn.App. 258, 263, 779 A.2d 843 (2001). In Vincenzo, after a parole revocation proceeding, a prisoner filed an action seeking a declaratory judgment (1) that the board of parole was an agency within the meaning of the UAPA; (2) that the conditions of parole contained within the parole agreement were board regulations; and (3) that the regulations were invalid because the board did not enact them in accordance with the rule-making procedures of the UAPA. Id., 259. The court in Vincenzo, while not expressing an opinion as to whether the prisoner had met the requirements for bringing a declaratory judgment action pursuant to General Statutes § 4-175; see Vincenzo v. Chairman, supra, 263, n.2 (noting that this court expresses "no opinion as to whether those conditions have been met in this case"); ruled that a declaratory judgment claim brought pursuant to § 4-175 could be raised "[a]s long as a request for a declaratory ruling has first been filed ... and as long as the conditions enumerated in § 4-175 for the filing of a declaratory judgment action have been met." Id., 263.
General Statutes § 4-175(a) provides, in relevant part, that where "a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff, and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action." (Emphasis added; footnotes added.)
Section 4-176(e) provides in relevant part: "Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation ... (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date ..."
Section 4-176(e) provides in relevant part: "Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: ... (4) decide not to issue a declaratory ruling and initiate rule-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action."
Section 4-176(i) provides in relevant part: "If an agency does not issue a declaratory ruling within one hundred days after the filing of a petition therefor, or within such longer period as may be agreed by the parties, the agency shall be deemed to have decided not to issue such ruling."
In the present case, the plaintiffs, unlike the prisoner in Vincenzo, do not challenge a present interference with legal rights or privileges. In their motion for summary judgment, the plaintiffs emphasize that in the case of a parole violation finding, the plaintiffs will lose their legal right or privilege to remain at liberty on parole as well as the sentence reduction credits earned in accordance with § 18-7a of the Connecticut General Statutes, indicating that a threatened interference with legal rights or privileges, rather than a present interference, is at issue. General Statutes § 4-175(a) allows a party to challenge the validity of a regulation that has not been applied, as it provides, in relevant part, that a party can seek a declaratory judgment action where "a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff." (Emphasis added.) In the present case, like the prisoner in Vincenzo, the plaintiffs seek a declaration that (1) the Board is an agency within the meaning of the UAPA, and that (2) conditions of parole within the parole agreements constitute regulations that do not comply with the rule-making regulations of General Statutes § 4-167 et seq. See Compl., ¶ 17. The plaintiffs further allege that the "plaintiff, in accordance with § 4-176 ... petitioned the Board for a declaratory ruling as to the validity of each ... standard condition of parole." (Footnote added.) Compl., ¶ 11. In support of their allegations, the plaintiffs provide a letter, dated October 13, 2014, to Giles, requesting a declaratory ruling, which Oppel swears in an affidavit was filed on behalf of himself as well as Savanelli. Ex. B, Pls.’ Mot. Summ. J. (Docket Entry # 109.) The plaintiffs further allege, and the defendant has not offered evidence to refute, that, as of the time of the Complaint, dated January 4, 2016, "the defendant has not issued a declaratory ruling as to the validity of each ... standard condition of parole." Compl., ¶ 12.
In Counts Two and Three of their Complaint, the plaintiffs use the statutory language of "interferences with or impairs, or threatens to interfere with or impair," but do not, in either of these Counts, provide factual allegations to support how the conditions at issue interfere with, or threaten to interfere with, legal rights or privileges.
Although the Complaint refers to the "plaintiff" in the singular tense, Oppel, in an affidavit attached to the Plaintiffs’ Motion for Summary Judgment, swears that said letter was filed on behalf of both of the two plaintiffs.
Based on the record before the court, this court finds that the plaintiff has met the statutory requirements for bringing a declaratory judgment action pursuant to § 4-175. Accordingly, this court has subject matter jurisdiction over the plaintiffs’ claims.
C. Plaintiffs’ Motion for Summary Judgment
1. UAPA
In their motion for summary judgment, the plaintiffs argue that the Board constitutes an "agency" pursuant to the UAPA. The UAPA governs any agency, which it defines as "each state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the General Assembly, the courts, the Council on Probate Judicial Conduct, the Governor, Lieutenant Governor or Attorney General, or town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42-181." General Statutes § 4-166(1). A regulation, under the UAPA, constitutes "each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) declaratory rulings issued pursuant to section 4-176, or (C) intra-agency or interagency memoranda." § 4-166(16).
General Statutes § 4-167(b) provides: "No agency regulation is enforceable against any person or party, nor may it be invoked by the agency for any purpose, until (1) it has been made available for public inspection as provided in this section, and (2) the regulation or a notice of the adoption of the regulation has been published in the Connecticut Law Journal if noticed prior to July 1, 2013, or posted on the eRegulations System pursuant to section 4-172 and section 4-173b, if noticed on or after July 1, 2013. This provision is not applicable in favor of any person or party who has actual notice or knowledge thereof. The burden of proving the notice or knowledge is on the agency."
"According to the commissioners’ comment in the Model State Administrative Procedure Act, which is the basis for the Connecticut UAPA ... the purpose of public notice and a hearing prior to the adoption of a regulation is both to ensure, so far as feasible, that all interested persons will have an opportunity to present their views, and also to give some degree of assurance that the agency will, in fact, consider the arguments advanced by the affected parties ... The commissioners’ prefatory note to the Model Act refers to the requirement of notice and an opportunity to present views as a major principle of the act. With respect to the requirements of prior publication of rules, the commissioners’ comment to § 5 of the Model Act explains that (b)asic principles of fairness require that [b]efore individuals are required to comply with administrative rules, a reasonable attempt should be made to give notice and opportunity to become familiar with their contents." (Internal quotation marks omitted.) Cheshire Convalescent Center, Inc. v. Commission on Hospitals and Health Care, 34 Conn.Supp. 225, 240-41, 386 A.2d 264 (1977).
2. Agencies Under the UAPA
Although on the federal level, the United States Parole Board has been found to constitute an "agency" for purposes of the Administrative Procedure Act; see Pickus v. United States Board of Parole, 507 F.2d 1007, 1111-12 (D.C. Cir. 1974) (finding that the Board of Parole is not exempt from the Administrative Procedure Act, 5 U.S.C. § 553); to date, neither the Supreme Court nor the Appellate Court has ruled on whether the Board constitutes an "agency" that would be required to comply with the UAPA. See Taylor v. Robinson, 171 Conn. 691, 696, 372 A.2d 102 (1976) (noting that court will "assume, for the purposes of this decision, that the board of parole is an ‘agency’ "). Support for including the Board within the UAPA’s definition of "agency" comes from General Statutes § 4-183(a). Section § 4-183(a) provides that parties who have exhausted all available administrative remedies can appeal to the Superior Court in cases involving a "final decision," which is defined in § 4-166(5) as "(A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176, or (C) an agency decision made after reconsideration." Section 4-166(4) provides: "[A] ‘[c]ontested case’ ... does not include ... hearings conducted by the Department of Correction or the Board of Pardons and Paroles ." (Emphasis added.) If the Board did not constitute an agency, it would be unnecessary for the statute to explicitly exempt hearings conducted by the Board of Pardons and Paroles from contested cases. See Thomas v. Dept. of Developmental Services, 297 Conn. 391, 404, 999 A.2d 682 (2010) ("[I]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction" [internal quotation marks omitted]). Section 4-183(a) and § 4-166(5), taken together, indicate that the Board constitutes an agency governed by the UAPA. This court accordingly finds that the Board does constitute an agency.
Section 4-183. Appeal to Superior Court. (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.
In the present case, the plaintiffs do not challenge a Board decision to deny either or both of them parole, but challenge, instead, whether, pursuant to conditions of parole, inmates should be released on parole. Specifically, the plaintiffs seek a declaratory judgment pursuant to § 4-175 as to the validity of conditions of parole formulated, adopted, and approved by the Board. Because the issue before the court does not involve a decision made regarding an inmates’ release, § 4-166(4) does not apply to the present case.
Regulations Under the UAPA
Even though the Board does constitute an agency, this does not answer whether all of the Board’s actions constitute regulations pursuant to § 4-166(13). "The criteria that determine whether administrative action is a regulation are neither linguistic nor formalistic. It is not conclusive that an agency has, or has not, denominated its action a regulation or that it has, or has not, promulgated it procedurally in the fashion that would be required of a regulation ... The test is, rather, whether a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future ... Implicit in this formulation is the recognition that a regulation must be a rule of sufficient generality to impinge substantially on others who will deal with the agency at a future time." (Citations omitted; internal quotation marks omitted.) Maloney v. P. 183 Conn. 313, 325-26, 439 A.2d 349 (1981).
Vincenzo v. Chairman, Board of Parole, supra, 64 Conn.App. 258, is the only Appellate Court case, to date, that directly addresses whether terms and conditions of parole constitute agency regulations for purposes of the UAPA. In Vincenzo, the court determined that an individual who violated his parole could challenge the validity of parole conditions by pursuing a declaratory judgment action to establish (1) that the board of parole was an agency within the meaning of the Uniform Administrative Procedure Act (UAPA); (2) that the conditions of parole contained within the parole agreement were board regulations; and (3) that the regulations were invalid because the board did not enact them in accordance with the rule-making procedures of the UAPA. Id., 259. The court remanded the case for a lower court to determine whether the Board constituted an agency and if the conditions of parole constituted regulations. Id., 263. (No subsequent history exists to date.)
The Appellate Court, however, has addressed the issue of whether Department of Correction rules constitute regulations under the UAPA. In Pierce v. Lantz, 113 Conn.App. 98, 99-100, 965 A.2d 576, appeal denied, 293 Conn. 915, 979 A.2d 490, an inmate at a state correctional facility argued that Department of Correction (the department) rules were improperly promulgated, pursuant to the UAPA, and were consequently unenforceable. The rules at issue included prohibitions on receipt by prisoners of explicit publications, compact discs and cassette tapes with parental advisory stickers as well as a required thirty percent markup on compact discs and cassette tapes sold at the institution’s commissary. Id., 99. The rule governing the thirty percent markup appeared in a specific subsection of the department’s Administrative Directives. Id., 106. The department argued that all of the rules at issue constituted directives or rules rather than UAPA regulations. Id., 100.
The court in Pierce agreed with the department, finding that none of the rules at issue constituted regulations, as the UAPA defines that term. Id., 104, 106. With regard to the censorship rules, the court concluded that these constituted "administrative directives, which interpret[ed] and appl[ied] the regulations that already have been promulgated to govern the department." Id., 104. The court highlighted that the department had created the directives pursuant to both regulatory and statutory authority. Id., 105; see also id., 104., n.3 (highlighting General Statutes § 18-81, which provides in relevant part: "The Commissioner of Correction shall administer, coordinate and control the operations of the department and shall be responsible for the overall supervision and direction of all institutions, facilities and activities of the department. The commissioner shall establish rules for the administrative practices ... of said institutions and facilities in accordance with recognized correctional standards ..."). The court found that the directives fell within the exception excluding from the definition of UAPA regulations any statements involving only the internal management of an agency because they constituted administrative directives. Id., 105 (noting "[a]dministrative directives are created for the internal management of the correctional institutions and are not regulations that are subject to the UAPA requirements."); See also General Statutes § 4-166(16)(A) (formerly General Statutes § 4-166(13)(A)). Further, it came to a similar conclusion with regard to the mandatory thirty percent markup. Id., 105. It reasoned that the markup rule also constituted a directive because not only did the department have statutory authority to create a commissary, but it also had statutory and regulatory authority to establish rules for governing department operations, which it exercised by establishing the particular portion of the Administrative Directives of the department at issue. Id., 106.
In the present case, unlike in Pierce, the rules at issue came from the Board, rather than from the Department of Correction. In Pierce, the court concluded that the enactment of rules created pursuant to previously enacted regulations and statutory provisions demonstrated that the rules constituted administrative directives rather than generally applicable regulations under the UAPA. Pierce v. Lantz, supra, 113 Conn.App. 98, 105. In the present case, the Board is similarly authorized to create certain rules. General Statutes § 54-124a(a)(1) provides in relevant part: "There shall be a Board of Pardons and Paroles within the Department of Correction, for administrative purposes only." Section 54-124a(f), in relevant part, grants the Board the "independent decision-making authority to ... (2) establish conditions of parole or specific parole supervision ..." Further, General Statutes § 54-126 authorizes the Board to "establish such rules and regulations as it deems necessary, upon which such convict may go upon parole, and the panel for the particular case may establish special provisions for the parole of a convict." Lastly, this court takes judicial notice of Administrative Directive 11.1 (January 2009), available to the public on the Connecticut Department of Correction website, which incorporates statutory language by reference. See Administrative Directive 1.11, page 1 ("As provided for in Section 54-124a(f) of the Connecticut General Statutes, the Board of Pardons and Paroles has independent decision-making authority to (1) grant or deny parole, (2) establish conditions of parole or special parole, and (3) rescind or revoke parole or special parole.") and Administrative Directive 1.11, page 2 ("The Chairperson of the Board of Pardons and Paroles has the authority and responsibility as set forth in Section 54-124a(c-e) of the Connecticut General Statutes, which includes but is not limited to (1) overseeing all administrative affairs of the Board, and (2) adopting policies in all areas of pardons and paroles including but not limited to granting pardons; commutations of punishments; or releases, conditioned or absolute, in the case of any person convicted of any offense").
Administrative Directive 1.11 (January 2009) can be accessed here: https://portal.ct.gov/-/media/DOC/Pdf/Ad/ad1101pdf.pdf?la=en.
The aforementioned statutes and Administrative Directive give the Board the administrative authority to oversee decisions related to parole and the conditions of parole. The Board created the standard parole conditions at issue in the present case pursuant to its authority under § § 54-124a(f) and 54-126. Said conditions do not involve the interests of the general public, and like the rules at issue in Pierce, result from the interpretation and application of granted authority.
Moreover, the plaintiffs’ argument that any rules that will substantially impact the rights and obligations of individuals regulated by an agency is unpersuasive in light of the Appellate Court’s finding in Pierce, since the Department of Correction rules at issue in that case would impact the rights of prisoners. Further, the plaintiffs’ argument that the statutory grant of authority in § 54-126 for the Board to make rules and regulations evinces that parole conditions are regulations is unavailing. The grant of statutory authority to make rules does not show that said rules are regulations. On the contrary, the statutory grant of authority supports that the Board, like the Department of Correction in Pierce, was authorized by governing rules to produce its own directives, which do not constitute regulations. The plaintiffs have, accordingly, not met their burden of showing they are entitled to judgment as a matter of law.
In addition, the exceptions from the UAPA for certain Department of Correction acts provides persuasive evidence that the parole conditions at issue do not constitute regulations. General Statutes § 18-78a(a)(1) provides in relevant part: "The provisions of chapter 54 [which includes the UAPA] shall apply to the Department of Correction, except that in adopting regulations in regard to riot control procedures, security and emergency procedures, disciplinary action or classification the Department of Correction shall not be required to follow the procedures in sections 4-168, 4-168a, 4-168b, 4-172, 4-173, 4-174 and 4-176." General Statutes § 4-168, § 4-168b, § 4-172, and § 4-173 each involve electronic publication of records. Section 4-168 specifically provides in relevant part: "[A]n agency, not less than thirty days prior to adopting a proposed regulation, shall (1) post a notice of its intended action on the eRegulations System, which notice shall include (A) a specified public comment period of not less than thirty days." Thus, Section 18-78a exempts regulations related to disciplinary action from the requirement of posting on the eRegulations System, which would thereby provide the general public with knowledge of said rules. Because the parole conditions at issue in this case that penalize violators of parole conditions are similar to disciplinary sanctions, the exemption of parole conditions from the UAPA’s definition of regulations that are subject to public comment is consistent with the policy of excluding disciplinary action imposed by agencies from public notice and comment. The sections of the Connecticut General Statutes exempting disciplinary action by the Department of Correction from public notice, therefore, support the finding that conditions of parole need not be promulgated pursuant to the rule-making procedures applied to regulations pursuant to the UAPA.
Furthermore, persuasive authority indicates that parole conditions requiring parolees who violate conditions of parole to forfeit time credits earned should be upheld. The plaintiffs argue that each standard condition of parole interferes with or impairs, or threatens to interfere with or impair, their legal right or privilege to retain sentence reduction credit earned in accordance with § 18-7 and/or § 18-7(a) of the Connecticut General Statutes. Compl., ¶ 19. In Coronado v. United States Board of Parole, 540 F.2d 216, 217 (5th Circuit 1976), the Fifth Circuit Court of Appeals addressed the issue of whether to grant a declaratory judgment declaring that parole-type conditions imposed on a prisoner released under mandatory release violated the fifth amendment to the United States Constitution or was otherwise unconstitutional. The court concluded that the claim was "meritless" and reasoned that the court had previously determined that persons released under the same statutory provisions would be "subject to parole supervision and conditions" and, if found to be in violation of said conditions, "may forfeit good time credits earned prior to release as well as credit for time spent on conditional release." Id., 218. The court’s finding that the forfeiting of good time credits earned, pursuant to violation(s) of standard parole conditions, does not violate the United States Constitution provides persuasive support for this court’s conclusion that a threat to retention of sentence reduction credit pursuant to standard parole condition violations does not render said conditions unenforceable.
Finally, this court’s interpretation of the statute results in a just and equitable result in the present case. It does not deny parolees of the right to be heard in the face of a potential parole revocation. On the contrary, Section 54-124a(j)(1)-9 of the Regulations of Connecticut State Agencies provides in relevant part that, where parole revocation determinations have not been determined within sixty days, a revocation hearing shall be held, pursuant to the following conditions: "The offender shall have the opportunity to be heard and present evidence and advocacy in defense against the allegation, showing there was no violation of the conditions of parole or, if so, that circumstances in mitigation show that the violation does not warrant revocation. The offender may appear and testify and may present written materials and witnesses who can give relevant and material information to the Hearing Examiner regarding the allegations of violation of parole and mitigation." Therefore, even though parole condition, as non-regulations, need not be made available for public inspection, and need not be published in the Connecticut Law Journal, pursuant to General Statutes § 4-167(b), the court’s conclusion that parole conditions do not constitute regulations does not contradict basic fairness and notice principles. See Cheshire Convalescent Center, Inc. v. Commission on Hospitals and Health Care, supra, 34 Conn.Supp. 225, 240-41.
For the foregoing reasons, this court finds that the standard conditions of parole at issue in the present case do not constitute regulations pursuant to the UAPA.
III.
CONCLUSION
For the foregoing reasons, while this court agrees with the plaintiffs that the Board of Pardons and Paroles is an agency, it finds that the Board of Pardons and Parole’s standard conditions of parole are not regulations under the UAPA and are enforceable against the plaintiffs. Thus, this court finds that the plaintiffs have not met their burden of showing that they are entitled to judgment as a matter of law and their Motion for Summary Judgment is denied.