Pence v. Commissioner of Motor Vehicles (Dissent)

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Pence v. Commissioner of Motor Vehicles

WESTBROOK, J., dissenting. The majority affirms the
Superior Court’s dismissal of the administrative appeal
brought by the plaintiff, Colin J. Pence, for lack of
standing. In doing so, the majority upholds a decision
that, in my view, misapplies standing doctrine, disre-
gards the uncontested administrative record, imposes
an unsupported standard of ‘‘permanent’’ indigency,
and relieves the Superior Court from holding an eviden-
tiary hearing on the very issue it deemed dispositive.
Because I would conclude on the basis of this record
that the plaintiff met his burden of demonstrating his
standing to bring this action, I would reverse the judg-
ment of the Superior Court. Accordingly, I respectfully
dissent.
I begin by acknowledging my general agreement with
the facts and procedural history set forth in the majority
opinion, which I will not repeat. I would only highlight
that the administrative record demonstrates that the
plaintiff, under oath, testified before the hearing officer
that he is indigent, owns no motor vehicle, has no legal
access to another’s vehicle, and cannot afford to install
an ignition interlock device. The plaintiff was not cross-
examined, the administrative record contains no facts
that contradict the plaintiff’s sworn testimony, and the
hearing officer did not make any express finding that
the plaintiff’s testimony in this regard was not credible,
nor is such a finding necessarily implied by the hearing
officer’s ruling in favor of the defendant Commissioner
of Motor Vehicles because the plaintiff’s indigency and
ability to comply with ignition interlock device require-
ments was not an issue decided by the hearing officer.
In my view, these undisputed facts constitute a showing
of a present injury sufficient to establish standing.1
1
‘‘Standing is established by showing that the party claiming it is author-
ized by statute to bring [an action] or is classically aggrieved. . . . The
fundamental test for determining [classical] aggrievement encompasses a
[well settled] twofold determination: first, the party claiming aggrievement
must successfully demonstrate a specific, personal and legal interest in [the
subject matter of the challenged action], as distinguished from a general
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Pence v. Commissioner of Motor Vehicles

‘‘Standing is the legal right to set judicial machinery
in motion. . . . Standing . . . is not a technical rule
intended to keep aggrieved parties out of court; nor is
it a test of substantive rights. Rather it is a practical
concept designed to ensure that courts and parties are
not vexed by suits brought to vindicate nonjusticiable
interests and that judicial decisions which may affect
the rights of others are forged in hot controversy, with
each view fairly and vigorously represented.’’ (Citations
omitted; internal quotation marks omitted.) Webster
Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).
‘‘When standing is put in issue, the question is whether
the person whose standing is challenged is a proper
party to request an adjudication of the issue . . . .
Standing requires no more than a colorable claim of
injury; a [party] ordinarily establishes . . . standing by
allegations of injury.’’ (Internal quotation marks omit-
ted.) St. Germain v. LaBrie, 108 Conn. App. 587, 591,
949 A.2d 518 (2008).
Furthermore, standing ordinarily must be assessed
in reference to the time an action is initiated. See, e.g.,
Deutsche Bank National Trust Co. v. Bliss, 159 Conn.
App. 483, 488, 124 A.3d 890 (‘‘in order to have standing
to bring a foreclosure action the plaintiff must, at the
time the action is commenced, be entitled to enforce
the promissory note that is secured by the property’’
(emphasis in original; internal quotation marks omit-
ted)), cert. denied, 320 Conn. 903, 127 A.3d 186 (2015),
cert. denied, 579 U.S. 903, 136 S. Ct. 2466, 195 L. Ed.
interest, such as is the concern of all members of the community as a whole.
Second, the party claiming aggrievement must successfully establish that
this specific personal and legal interest has been specially and injuriously
affected by the [challenged action]. . . . Aggrievement is established if
there is a possibility, as distinguished from a certainty, that some legally
protected interest . . . has been adversely affected.’’ (Internal quotation
marks omitted.) State v. Bradley, 341 Conn. 72, 80, 266 A.3d 823 (2021).
The administrative record supports that the plaintiff satisfies both the first
and second prongs of this test and, thus, is classically aggrieved.
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Pence v. Commissioner of Motor Vehicles

2d 801 (2016); see also Davis v. Federal Election Com-
mission, 554 U.S. 724, 734, 128 S. Ct. 2759, 171 L. Ed.
2d 737 (2008) (‘‘the standing inquiry [is] focused on
whether the party invoking jurisdiction had the requisite
stake in the outcome when the suit was filed’’ (empha-
sis added)).2 The Superior Court and the majority focus
not on the plaintiff’s circumstances when he com-
menced the underlying action, but on what his circum-
stances might be in the future. In doing so, they appear
to obscure the present nature of the injury alleged and
conflate standing with the possibility that the plaintiff’s
claim may become moot or otherwise nonjusticiable in
the future if his present circumstances should change.
Standing to raise a constitutional injury arises from
present conditions, even if those conditions may not
prove to be immutable. See Friends of the Earth, Inc.
v. Laidlaw Environmental Services (TOC), Inc., 528
U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)
(discussing analytical distinctions between standing
and mootness and noting that ‘‘[t]he requisite personal
interest that must exist at the commencement of the
litigation (standing) must continue throughout its exis-
tence (mootness)’’ (internal quotation marks omitted)).
That the plaintiff, at some future time, may no longer be
indigent or otherwise may acquire the ability to comply
with the statutory ignition interlock device require-
ments is speculative and, in my view, an improper
inquiry for the present standing analysis.
The Superior Court, when reviewing an administra-
tive appeal under General Statutes § 4-183, ordinarily
must confine itself to the agency record. Section 4-
183 (i) provides in relevant part: ‘‘The appeal shall be
2
I agree with the plaintiff’s argument that, ‘‘[a]lthough standing in Connect-
icut is not controlled by article III [of] the United States constitution or
associated case law, the doctrine of standing in Connecticut closely aligns
with its federal counterpart and focuses upon the key question of whether
a litigant has made a colorable claim of direct injury actually suffered or
likely to be suffered.’’
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Pence v. Commissioner of Motor Vehicles

conducted by the court without a jury and shall be
confined to the record. If alleged irregularities in proce-
dure before the agency are not shown in the record or
if facts necessary to establish aggrievement are not
shown in the record, proof limited thereto may be taken
in the court. . . .’’ From the time of his arrest in August,
2022, through at least the time of oral argument before
this court in March, 2025, there is nothing in the record
demonstrating that the plaintiff’s financial status or cir-
cumstances has changed, a further indication that this
is not a case of temporary hardship. To resolve the
criminal charges against him, the plaintiff was repre-
sented by a public defender—a status that required a
formal indigency determination under General Statutes
§ 51-297. The plaintiff submitted a copy of his sworn
application to support his claim of indigency. No con-
trary evidence was submitted and, as previously stated,
the administrative agency made no adverse findings
regarding his claim of indigency. Nevertheless, the
Superior Court dismissed the action sua sponte, indicat-
ing that the plaintiff offered no evidence that his circum-
stances were ‘‘more than transitory or temporary in
nature,’’ noting, for instance, that the plaintiff did not
establish whether his parents charged him for rent or
other expenses.

Here, although the hearing officer did not decide the
constitutional issue, it permitted the plaintiff to create
a record in support of his claim. The Superior Court,
rather than confining itself to the administrative record,
made additional factual determinations without holding
an evidentiary hearing at which the plaintiff would have
had an opportunity to respond to the court’s sua sponte
standing concerns. In my view, if a plaintiff must show
that they are permanently indigent in order to challenge
a law that burdens the indigent, then few, if any, plain-
tiffs will ever be able to meet that threshold. This effec-
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Pence v. Commissioner of Motor Vehicles

tively renders the statute immune from challenges by
those it harms most.

The Superior Court’s conclusion that the plaintiff
lacked standing because he may not be ‘‘permanently’’
indigent is also problematic. Statutory definitions of
indigency can be found in General Statutes §§ 51-297
(f)3 and 52-259b4—which are both based on current
financial status, not on a showing of ‘‘permanent’’ indi-
gency. Each of these provisions focuses on present
financial hardship, not an indefinite economic status.
The ignition interlock device statutes themselves pro-
vide for a reduction or elimination of charges associated
3
General Statutes § 51-297 (f) provides in relevant part: ‘‘(1) As used in
this chapter, ‘indigent defendant’ means (A) a person who is formally charged
with the commission of a crime punishable by imprisonment and who does
not have the financial ability at the time of his request for representation
to secure competent legal representation and to provide other necessary
expenses of legal representation . . . .
‘‘(2) An assessment determining whether a person has the financial ability
to secure competent legal representation and to provide other necessary
expenses of legal representation or qualifies as an indigent defendant pursu-
ant to subdivision (1) of this subsection shall be based upon guidelines
established by the commission. The commission shall annually establish
such guidelines providing that a person whose income, calculated as
described in such guidelines, is two hundred fifty per cent or less of the
federal poverty level may qualify as an indigent defendant. The commission
shall make such guidelines available to the public on the Division of Public
Defender Service’s Internet web site.’’
4
General Statutes § 52-259b provides in relevant part: ‘‘(a) In any civil or
criminal matter, if the court finds that a party is indigent and unable to pay
a fee or fees payable to the court or to pay the cost of service of process,
the court shall waive such fee or fees and the cost of service of process
shall be paid by the state.
‘‘(b) There shall be a rebuttable presumption that a person is indigent
and unable to pay a fee or fees or the cost of service of process if (1) such
person receives public assistance, or (2) such person’s income after taxes,
mandatory wage deductions and child care expenses is one hundred twenty-
five per cent or less of the federal poverty level. For purposes of this
subsection, ‘public assistance’ includes, but is not limited to, state-adminis-
tered general assistance, temporary family assistance, aid to the aged, blind
and disabled, supplemental nutrition assistance and Supplemental Security
Income. . . .’’
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with the installation, maintenance or removal of ignition
interlock devices for indigent persons. See General Stat-
utes § 14-227o.5 A person may establish indigency by
providing to a provider of ignition interlock device ser-
vices proof of participation in the state’s supplemental
nutrition or home energy assistance programs.6 None
of the aforementioned statutes, however, requires a
party to demonstrate that his or her financial circum-
stances will remain the same in the future. The plaintiff’s
existing indigency at the time he commenced this action
rendered him unable to meet the conditions to regain
his license. That is the injury relevant to the standing
inquiry. Stated differently, before the administrative
agency, the plaintiff raised an equal protection claim
based on his indigency determination for public
defender services. The Superior Court simply had no
evidence before it to dispute the testimony and exhibits
presented before the hearing officer and, in my view,
impermissibly strayed from the administrative record.
The Superior Court’s handling of the standing analy-
sis is further undermined by its late articulation of a
5
General Statutes § 14-227o provides in relevant part: ‘‘Notwithstanding
any provision of the general statutes requiring a person subject to an order
to install and maintain an ignition interlock device to bear all costs associated
with such installation and maintenance, any provider of ignition interlock
device services, including installation, maintenance and removal of such
devices, may include in a lease agreement with a person required to install
such device . . . a reduction to or an elimination of the charge for such
services if such person is indigent. Such person may provide to the provider
of such ignition interlock device services as proof of indigency a valid
participation card or letter indicating participation in the state-administered
federal Supplemental Nutrition Assistance Program or the state-adminis-
tered federal Low Income Home Energy Assistance Program. Any such letter
shall be on letterhead stationery of the Department of Social Services and
in original form.’’
6
Although the financial assistance provided for in § 14-227o arguably
undermines, at least in part, the merits of the plaintiff’s constitutional claim,
it does not resolve it entirely because the statute does not address the issue
of an indigent party’s inability to obtain a vehicle in which to install an
ignition interlock device.
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legal standard for rejecting the plaintiff’s assertion of
indigency, which the court first produced in its response
to the plaintiff’s motion for reconsideration and reargu-
ment. For the first time, the Superior Court cites to the
general definition of indigency contained in Black’s Law
Dictionary, rather than considering and applying one
of the statutory definitions adopted by the Connecticut
legislature and courts. Dictionary definitions may aid in
legal interpretations, but they do not supplant statutory
legal standards. By adopting a nonbinding dictionary
definition, the court introduced a heightened standard
for indigency that risks inconsistent application in
future cases. The court further advances another unsup-
ported element, asserting that the plaintiff could not
prevail because he would not face ‘‘infinite license sus-
pension’’—a classification that creates an unnecessarily
narrow conception of harm.
In short, I conclude that the plaintiff’s uncontested
testimony before the hearing officer placed him
squarely within the class allegedly burdened by the
statute. I would hold that the plaintiff has demonstrated
standing to pursue his equal protection claim—or at
the very least, he was entitled to an evidentiary hearing
to produce facts in support of his claim.7 Accordingly,
I would reverse the judgment of the court.
I respectfully dissent.

7
My disagreement with the court’s resolution of this matter on standing
grounds should not be misconstrued as any indication regarding the relative
strength of the plaintiff’s underlying equal protection claims. Under existing
precedent, indigency is not a class that implicates either strict or intermedi-
ate scrutiny and other courts that have considered similar claims as those
raised in the present case have rejected them upon rational basis scrutiny.
See, e.g., Probst v. Pennsylvania, 578 Pa. 42, 54–58, 849 A.2d 1135 (2004).
Whether the plaintiff was likely to prevail on his claims has no bearing on
whether the plaintiff met the relatively low bar to establish standing to
assert his claims.