Anthony A. v. Commissioner of Correction , 326 Conn. 668 ( 2017 )

ANTHONY A. v. COMMISSIONER OF CORRECTION*
(SC 19565)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa and Robinson, Js.*
Syllabus
The petitioner sought a writ of habeas corpus, claiming that the respondent
Commissioner of Correction had incorrectly classified him as a sex
offender without providing procedural due process as required under
the federal constitution. The petitioner had been convicted of unlawful
restraint in the first degree, failure to appear and violation of probation.
Prior to the petitioner’s incarceration, the state entered a nolle prosequi
as to a charge of sexual assault in a spousal relationship after the
petitioner’s wife recanted her statement to the police that the petitioner
had sexually assaulted her during the same incident that formed the basis
for the charges of which he was convicted. Thereafter, the respondent
classified the petitioner as a sex offender, even though the petitioner
was never convicted of a sex offense and had no prior history as a sex
offender. As a result of that classification, the Department of Correction
required the petitioner to participate in sex offender treatment or risk
forfeiture of supervised community release, parole and the opportunity
to earn risk reduction earned credit. The petitioner refused to participate
in treatment. The habeas court dismissed the petition, concluding that,
because the petitioner failed to allege a protected liberty interest, the
court lacked subject matter jurisdiction. On the granting of certification,
the petitioner appealed to the Appellate Court, which reversed the
habeas court’s judgment and remanded the case for a hearing on the
merits. The Appellate Court concluded that the petitioner’s allegations
established a protected liberty interest under the stigma plus test applied
by the federal courts to determine whether an inmate who challenges,
inter alia, his allegedly wrongful classification as a sex offender has
established such an interest. On the granting of certification, the respon-
dent appealed to this court. Held that the petitioner’s allegations in the
habeas petition, which this court was required to accept as true, were
sufficient to allege a protected liberty interest that conferred jurisdiction
on the habeas court, and, accordingly, the Appellate Court properly
reversed the habeas court’s judgment; the petitioner satisfied his burden
of establishing a protected liberty interest under the applicable stigma
plus test, as the petitioner’s allegation that the respondent had improp-
erly classified him a sex offender established stigma, and his allegation
that he was required to participate in sex offender treatment or risk
forfeiting parole eligibility, community release, and good time credits
established that he suffered negative consequences as a result of that
allegedly erroneous classification in that the consequences were qualita-
tively different from the punishments usually suffered by inmates such
that they constituted a major change in the conditions of confinement
that amounted to a grievous loss.
Argued February 23—officially released August 29, 2017
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Sferrazza, J.; judgment dismissing
the petition, from which the petitioner, on the granting
of certification, appealed to the Appellate Court, Alvord,
Sheldon and Norcott, Js., which reversed the habeas
court’s judgment and remanded the case for further
proceedings, and the respondent, on the granting of
certification, appealed to this court. Affirmed.
Edward Wilson, Jr., assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Terrence M. O’Neill and Steven R. Strom,
assistant attorneys general, for the appellant
(respondent).
Richard E. Condon, Jr., senior assistant public
defender, for the appellee (petitioner).
Opinion
ESPINOSA, J. The present appeal requires us to deter-
mine the appropriate test for resolving whether an
inmate’s prison classification implicates a protected lib-
erty interest. The respondent, the Commissioner of Cor-
rection, appeals from the judgment of the Appellate
Court reversing the judgment of the habeas court, which
dismissed the petition for a writ of habeas corpus filed
by the petitioner, Anthony A., for lack of subject matter
jurisdiction.1 Anthony A. v. Commissioner of Correc-
tion, 159 Conn. App. 226, 242, 122 A.3d 730 (2015). The
respondent claims that, contrary to the conclusion of
the Appellate Court, the habeas court properly dis-
missed the petition on the basis that the petitioner failed
to allege a protected liberty interest. The petitioner
responds that the allegations in the petition, which
claim that he was incorrectly classified as a sex offender
and that he suffered negative consequences as a result
of that erroneous classification, sufficiently alleged a
cognizable liberty interest to confer jurisdiction on the
court. We agree with the petitioner and affirm the judg-
ment of the Appellate Court.
Because this appeal arises from the habeas court’s
ruling dismissing the petition on the basis that the court
lacked jurisdiction, we take the facts to be those alleged
in the petition, including those facts necessarily implied
from the allegations, construing them in favor of the
petitioner for purposes of deciding whether the court
had subject matter jurisdiction.2 See Dorry v. Garden,
313 Conn. 516, 521, 98 A.3d 55 (2014). The allegations
in the petition and attachments thereto establish that
the petitioner is an inmate who was convicted after
pleading guilty to unlawful restraint in the first degree,
failure to appear and violation of probation. Initially,
the victim, the petitioner’s wife, also told the police
that the petitioner had sexually assaulted her, but she
subsequently recanted that statement, and the state
entered a nolle prosequi as to the charge of sexual
assault in a spousal relationship.
Upon the petitioner’s incarceration, he was classified
pursuant to an administrative directive of the Depart-
ment of Correction (department), which provides in
relevant part: ‘‘Each inmate under the custody of the
Commissioner of Correction shall be classified to the
most appropriate assignment for security and treatment
needs to promote effective population management and
preparation for release from confinement and supervi-
sion. . . .’’ Department of Correction, Administrative
Directive 9.2 (1) (effective July 1, 2006) (Administrative
Directive 9.2). An inmate’s classification depends on
his risks and needs scores, each of which is evaluated
pursuant to specific factors. Administrative Directive
9.2 (8) (A) and (B).3 Those scores and the resulting
classification determine the inmate’s ‘‘appropriate con-
finement location, treatment, programs and employ-
ment assignment whether in a facility or the
community.’’ Administrative Directive 9.2 (3) (A).
The department classified the petitioner as a sex
offender, despite the fact that he had not been convicted
of a sex offense and had no prior history as a sex
offender.4 As a consequence of the erroneous classifica-
tion, the petitioner was offered a choice. He could par-
ticipate in ‘‘sex treatment’’ that was recommended by
his offender accountability plan or risk forfeiture of
supervised community release, parole and the opportu-
nity to earn risk reduction earned credit (good time
credits). He refused to participate in treatment.
The petitioner subsequently filed this petition, claim-
ing that he had been classified as a sex offender without
being provided procedural due process. At the hearing
on the petition, the court first heard argument as to
whether it had jurisdiction. The petitioner argued that
he had alleged sufficient facts to establish a cognizable
liberty interest. Specifically, he argued that the classifi-
cation had been predicated on erroneous facts, stigma-
tized him, and that he had been materially burdened
by the classification.
As to those material burdens, the petitioner alleged
that he suffered several negative consequences as a
result of the classification. He alleged a direct causal
link between the classification and his increased secu-
rity status. He alleged a contingent relationship between
the classification, the recommended treatment plan and
his eligibility for good time credits, parole and commu-
nity release. That is, he claimed that the department
had notified him that if he did not participate in the
recommended sex offender treatment, he risked forfeit-
ing all three of those benefits. That claim finds support
in the department’s offender accountability plan that
was attached to the petition and provides: ‘‘Failure to
comply with [the plan’s] recommendations . . . shall
negatively impact your earning of [good time credits]
. . . and/or chances of [department] supervised com-
munity release and/or parole.’’ (Emphasis added.)
Finally, although the petitioner did not allege in the
petition that he actually suffered harassment as a result
of the classification, he did claim in an inmate adminis-
trative remedy form that he had submitted to the depart-
ment that the sex offender classification had the
‘‘potential’’ to prejudice prison staff and other inmates
against him.5 The habeas court dismissed the petition,
concluding that because the petitioner failed to allege
any protected liberty interest, the court lacked subject
matter jurisdiction. Upon the habeas court’s grant of
certification to appeal, the petitioner appealed from the
judgment of dismissal to the Appellate Court.
The Appellate Court first considered whether the
petition had been rendered moot by the petitioner’s
release from prison prior to oral argument. Anthony A.
v. Commissioner of Correction, supra, 159 Conn. App.
232–33. The court observed that the petitioner had
informed the court that, after his release, he had been
arrested in connection with new charges and was being
detained at New Haven Correctional Center. Id., 232.
Because of the petitioner’s new arrest, the Appellate
Court reasoned that there was ‘‘a reasonable possibility
that, should he return to prison, he will again be classi-
fied as being in need of sex offender treatment because
the department assigned him a sex offender treatment
need score with a recommended sex offender treatment
referral during his previous incarceration.’’ Id., 234. The
court concluded, therefore, that the collateral conse-
quences exception to the mootness doctrine applied.6
Id., 233.
Turning to the merits of the petitioner’s claim, the
Appellate Court reversed the judgment of the habeas
court on the basis of its conclusion that the petitioner’s
allegations established a protected liberty interest
under the stigma plus test applied by the federal courts,
which it found to be appropriate under the facts of the
present case. Id., 238–40. The court concluded that the
petitioner’s allegation that the department had falsely
labeled him a sex offender established stigma, and that
the petitioner’s allegation that he had been coerced to
participate in sex offender treatment on the basis of
that erroneous classification established the ‘‘plus’’ ele-
ment of the test. Id., 240–41. This certified appeal
followed.
‘‘In order to state a claim for a denial of procedural
due process . . . a prisoner must allege that he pos-
sessed a protected liberty interest, and was not afforded
the requisite process before being deprived of that lib-
erty interest. . . . A petitioner has no right to due pro-
cess . . . unless a liberty interest has been deprived
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Coleman v. Commissioner of Correction, 111
Conn. App. 138, 141, 958 A.2d 790 (2008), cert. denied,
290 Conn. 905, 962 A.2d 793 (2009). Our first inquiry,
therefore, is whether the petitioner has alleged a pro-
tected liberty interest. That question implicates the sub-
ject matter jurisdiction of the habeas court. See Baker
v. Commissioner of Correction, 281 Conn. 241, 261–62,
914 A.2d 1034 (2007) (holding that habeas court lacked
subject matter jurisdiction because inmate did not have
cognizable liberty interest in parole eligibility status).
The parties disagree as to the applicable test to deter-
mine whether the petitioner’s allegations are sufficient
to establish that the respondent’s actions implicated a
protected liberty interest. The respondent, relying on
this court’s decision in Wheway v. Warden, 215 Conn.
418, 431, 576 A.2d 494 (1990), argues that because he
enjoys full discretion in assigning classification and
needs scores to inmates, such classifications cannot,
as a matter of law, give rise to a protected liberty inter-
est. The petitioner contends that because the classifica-
tion stigmatized him and because he suffered negative
consequences, he has satisfied his burden of establish-
ing a protected liberty interest under the stigma plus
test. We agree with the petitioner that the stigma plus
test applies under the circumstances of the case, and
we conclude that his allegations sufficiently allege a
protected liberty interest.
In Sandin v. Conner, 515 U.S. 472, 477–84, 115 S. Ct.
2293, 132 L. Ed. 2d 418 (1995), the United States
Supreme Court reviewed its earlier decisions that had
considered under what circumstances allegations by
inmates were sufficient to establish that state action
had implicated a protected liberty interest. In the earli-
est case in that line of cases, Morrissey v. Brewer, 408
U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the
court addressed whether the revocation of parole impli-
cated a liberty interest. The court rejected the tradi-
tional view that the question turned on whether parole
was a vested right or a privilege. Id., 481–82. The inquiry,
the court stated, should instead center on both the
weight of the loss and the nature of the interest impli-
cated. Id., 481. That is, only state action that threatens
to inflict a ‘‘grievous loss’’ to an interest that falls within
the parameters of the ‘‘ ‘liberty or property’ language
of the [f]ourteenth [a]mendment’’ will trigger the right
to procedural due process. Id., 481–82. Because revoca-
tion of parole satisfied both of those criteria, the court
reasoned, it called for ‘‘some orderly process, however
informal.’’ Id., 482.
In its next decision addressing inmates’ due process
rights, the court shifted the inquiry away from the
nature of the interest affected to the nature of the state
action taken. In Wolff v. McDonnell, 418 U.S. 539, 554,
94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), Nebraska inmates
challenged disciplinary sanctions withholding good
time credits. The applicable state statutes specified that
good time credits were to ‘‘be forfeited only for serious
misbehavior.’’ (Emphasis added.) Id., 557. The court
recognized that the due process clause does not directly
guarantee a prisoner good time credits. Id. By expressly
limiting the withholding of good time credits to
instances of ‘‘major misconduct,’’ however, Nebraska’s
statute had given rise to a ‘‘state-created’’ liberty interest
that was protected by the due process clause. Id.
The court elaborated on both the grievous loss and
state created liberty interest inquiries in Meachum v.
Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451
(1976), in which the court rejected the prisoners’ claim
that a transfer to a Massachusetts prison with less favor-
able conditions implicated a protected liberty interest.
The court acknowledged that the transfers had a ‘‘sub-
stantial adverse impact’’ on the prisoners. Id., 224.
Whether the prisoners had suffered a grievous loss of
liberty due to the transfers, however, must be under-
stood in the context of their status as individuals who
have been incarcerated following a conviction. Because
prisoners have already had their liberty greatly cur-
tailed, such transfers do not constitute a grievous loss.
Id. The court further observed that the federal constitu-
tion does not require a state to have more than one
prison, nor does it guarantee placement in a particular
prison. Id. The transfers, therefore, fell within the ‘‘nor-
mal limits or range of custody which the conviction has
authorized the [s]tate to impose.’’ Id., 225. If the court
were to afford due process protection to every substan-
tial deprivation suffered by prisoners, it reasoned, that
would risk subjecting ‘‘to judicial review a wide spec-
trum of discretionary actions that traditionally have
been the business of prison administrators rather than
of the federal courts.’’ Id. As to whether a state statute
had created a liberty interest, in dictum, the court relied
on the broad discretion that Massachusetts prison offi-
cials had to transfer an inmate ‘‘for whatever reason
or no reason at all’’ to reject the proposition that the
prisoners had a state created due process right in
avoiding the transfers. Id., 228. In contrast to the facts
of Wolff, the court observed, there were no state laws
that circumscribed that discretion or subjected it to any
conditions. Id., 226.
The court’s subsequent decisions had picked up on
the theme sounded in the Meachum dictum, focusing
the inquiry on the extent to which state laws had cab-
ined the discretion of state actors. The court in Sandin
viewed this line of cases as a digression from the proper
inquiry—into the nature of the interest and the extent of
the loss suffered—in favor of an unhelpful, ‘‘mechanical
dichotomy’’ of mandatory versus discretionary deci-
sions. Sandin v. Connor, supra, 515 U.S. 479. For exam-
ple, in Greenholtz v. Inmates of the Nebraska Penal &
Correctional Complex, 442 U.S. 1, 11–12, 99 S. Ct. 2100,
60 L. Ed. 2d 668 (1979), the court concluded that the
applicable state statute, which provided that the board
of parole ‘‘shall’’ order a prisoner’s release on parole
‘‘unless’’ it found one of four exceptions to be proven,
created an ‘‘expectancy of release’’ in the inmates that
gave rise to a liberty interest. The fixation on this dichot-
omy resulted in prisoners ‘‘comb[ing] regulations in
search of mandatory language on which to base entitle-
ments to various state-conferred privileges.’’ Sandin
v. Connor, supra, 481. Courts responded accordingly,
centering their due process analyses entirely on the
language of state statutes and regulations. Id.; see, e.g.,
Hewitt v. Helms, 459 U.S. 460, 468, 470–71, 103 S. Ct.
864, 74 L. Ed. 2d 675 (1983) (relying on mandatory
language in state regulations to conclude that adminis-
trative segregation implicated protected liberty interest,
despite also concluding that such confinement fell
within conditions ‘‘ordinarily contemplated by a prison
sentence’’). This approach was particularly problematic
in light of the fact that prison regulations, on which
both litigants and the courts were relying to infer state
created rights, were not ‘‘designed to confer rights on
inmates,’’ but, rather, were ‘‘primarily designed to guide
correctional officials in the administration of a prison.’’
Sandin v. Connor, supra, 481–82. As a result, the man-
datory versus discretionary approach to identifying
inmates’ liberty interests created a disincentive for
states to enact regulations and encouraged courts to
micromanage prisons. Id., 482.
Sandin represented the court’s return to the original
focus of the liberty interest inquiry—the nature of the
interest involved and the extent of the loss suffered.
The prisoner in Sandin alleged that being placed in
administrative segregation for misconduct implicated
his right to due process. Id., 476. The decision articu-
lated two separate inquiries for determining whether a
prisoner has alleged a protected liberty interest, either
one created directly by the due process clause itself,
or indirectly as a state created right. An independent
federal constitutional interest is implicated when condi-
tions are imposed on an inmate that ‘‘[exceed] the sen-
tence in such an unexpected manner as to give rise to
protection by the [d]ue [p]rocess [c]lause of its own
force . . . .’’ Id., 484. State created constitutional inter-
ests are ‘‘limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.’’ Id.
Sandin also acknowledged that, in ‘‘certain situa-
tions,’’ a different inquiry is appropriate to determine
whether the due process clause directly ‘‘confers a lib-
erty interest’’ on inmates. Id., 479 n.4. Specifically, the
court cited to its decision in Vitek v. Jones, 445 U.S.
480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), for the
proposition that where a state action has ‘‘ ‘stigmatizing
consequences’ ’’ for a prisoner and results in a punish-
ment that is ‘‘ ‘qualitatively different’ ’’ from that ‘‘char-
acteristically suffered by a person convicted of crime,’’
the protected liberty interest arises from the due pro-
cess clause directly. Sandin v. Conner, supra, 479 n.4.
In Vitek, the court held that an inmate who had chal-
lenged his involuntary transfer to a mental hospital had
a cognizable liberty interest in not being transferred to
the hospital and subjected to mandatory psychiatric
treatments without adequate due process. Vitek v.
Jones, supra, 494. The court recognized that the stigma
suffered by persons committed to a mental institution—
as well as the accompanying, significant, negative social
consequences—is indisputable. Id., 492. Involuntary
commitment to a mental hospital, moreover, was ‘‘quali-
tatively different’’ from the punishments usually suf-
fered by prisoners. Id., 493. The transfer, therefore
‘‘constituted a major change in the conditions of con-
finement amounting to a grievous loss . . . .’’7 (Internal
quotation marks omitted.) Id., 488; see also id., 492.
Courts have referred to this third inquiry as the
‘‘ ‘stigma plus’ ’’ test. See, e.g., Vega v. Lantz, 596 F.3d
77, 81 (2d Cir. 2010). It does not appear that the prisoner
in Vitek challenged the determination that he was men-
tally ill, and, accordingly, the court did not consider
the veracity of that classification in concluding that he
had alleged a protected liberty interest. We agree with
the lower federal courts, however, that an inmate rais-
ing a due process claim pursuant to the stigma plus
test in Vitek also must allege the falsehood of the stigma-
tizing label or classification.8 Id. Under the facts of the
present case—where the petitioner has alleged that he
was stigmatized when the respondent wrongfully classi-
fied him as a sex offender, and alleges as the ‘‘plus’’ that
he suffered various negative consequences, including
being compelled to participate in treatment or risk for-
feiting good time credits and parole eligibility—the
stigma plus test is the best fit. Our inquiry, therefore,
focuses on whether the allegations of the petition dem-
onstrate that the classification was wrongful and stig-
matized the petitioner, and that the consequences
suffered by the petitioner were ‘‘qualitatively different’’
from the punishments usually suffered by prisoners, so
that they constituted a major change in the conditions
of confinement amounting to a grievous loss.
The federal courts of appeals have arrived at the same
conclusion, applying the stigma plus test to determine
whether a prisoner who challenges his allegedly wrong-
ful classification as a sex offender has established a
protected liberty interest. We agree with the federal
courts that the first part of the test—whether it is stig-
matizing to be classified as a sex offender—may be
dispatched with ease and relatively little analysis. That
classification is uniquely stigmatizing. As the United
States Court of Appeals for the Ninth Circuit explained:
‘‘We can hardly conceive of a state’s action bearing
more stigmatizing consequences than the labeling of a
prison inmate as a sex offender. . . . One need only
look to the increasingly popular Megan’s Laws, whereby
states require sex offenders to register with law enforce-
ment officials who are then authorized to release infor-
mation about the sex offender to the public, to
comprehend the stigmatizing consequences of being
labeled a sex offender.’’ (Footnote omitted; internal
quotation marks omitted.) Neal v. Shimoda, 131 F.3d
818, 829 (9th Cir. 1997). As far as the petitioner’s burden
to demonstrate that the classification is wrongful, for
purposes of jurisdiction, that requirement is satisfied
by effective pleading and verified in a threshold
inquiry—the petitioner simply must claim that the clas-
sification is false. At least one court has rejected a
petitioner’s claim on the basis that he failed to do so.
See Vega v. Lantz, supra, 596 F.3d 77 (concluding that
petitioner failed to establish threshold requirement of
alleging that classification as sex offender was false).
In the present case, the petitioner has satisfied this
requirement by claiming that he did not sexually assault
his wife and pointing to her retraction of her initial
statements to the contrary.
The weightier problem is resolving whether a prison-
er’s allegations have established the ‘‘plus’’ factor. A
recent decision of the United States Supreme Court
highlights the difficulty of determining what constitutes
a qualitative difference or major change in the condi-
tions of confinement amounting to a grievous loss. One
cannot do so without reference to what constitutes
‘‘typical’’ or ‘‘ordinary’’ conditions of confinement for
a prisoner. In Wilkinson v. Austin, 545 U.S. 209, 223–24,
125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005), the court found
that the extreme conditions experienced by prisoners
placed in a super maximum security prison easily satis-
fied the ‘‘atypical and significant hardship’’ inquiry, an
inquiry that is very similar to the ‘‘plus’’ portion of the
stigma plus test. The court explained that ‘‘the touch-
stone of the inquiry into the existence of a protected,
state-created liberty interest in avoiding restrictive con-
ditions of confinement is not the language of regulations
regarding those conditions but the nature of those con-
ditions themselves in relation to the ordinary inci-
dents of prison life.’’ (Emphasis added; internal
quotation marks omitted.) Id., 223. The extreme isola-
tion and indeterminate length of confinement in a super
maximum security facility, the court held, established
a ‘‘dramatic departure from the basic conditions of
[the inmate’s] sentence.’’ (Emphasis added; internal
quotation marks omitted.) Id. What must be determined,
the court explained, is the degree of departure from
the ‘‘baseline.’’ Id. The court in Wilkinson acknowl-
edged that the lower federal courts have not arrived at
a uniform method of determining what the baseline is,
but declined to resolve the question because it was
unnecessary, given the extreme nature of confinement
in a super maximum security facility. Id.
The emphasis in Wilkinson on the need to first deter-
mine the baseline requires that our inquiry be a prag-
matic one, aimed at determining the degree to which
the conditions alleged by the petitioner depart from the
expected norm of prison confinement. For that reason,
although the Supreme Court expressly has stated that
dichotomies such as mandatory/discretionary and
rights/privileges are not determinative as to whether a
petitioner has established a protected interest; Sandin
v. Connor, supra, 515 U.S. 479; Morrissey v. Brewer,
supra, 408 U.S. 483–84; such distinctions remain helpful
to the extent that they are relevant to determining (1)
what a prisoner ordinarily should expect from prison
confinement, and (2) the degree to which particular
conditions impose a hardship on a prisoner. For
instance, in determining whether the refusal to consider
an inmate eligible for parole or the denial of good time
credits constitutes a major change in the conditions of
confinement amounting to a grievous loss, it is relevant
to consider the degree of discretion accorded to the
officials making those decisions. The greater the discre-
tion, the more difficult it becomes to establish a depar-
ture from the norm. See, e.g., Meachum v. Fano, supra,
427 U.S. 226–27 (finding no protected liberty interest in
avoiding transfer to maximum security prison because
officials had broad discretion to transfer inmates and
prisoners had no right to be in particular prison).
Federal courts have considered an inmate’s allegation
that he was compelled to participate in sex offender
treatment sufficient to satisfy the ‘‘plus’’ factor. See,
e.g., Renchenski v. Williams, 622 F.3d 315, 326–27 (3d
Cir. 2010) (likening sex offender treatment program to
forced transfer to mental institution in Vitek). Courts
have found such treatment programs to be compulsory
when the receipt of benefits, such as parole or good
time credits, is conditioned on participation in treat-
ment. See, e.g., Coleman v. Dretke, 395 F.3d 216, 222–23
(5th Cir. 2004) (conditioning parole on sex offender
registration and treatment rendered facts of case ‘‘mate-
rially indistinguishable from Vitek’’); Kirby v.
Siegelman, 195 F.3d 1285, 1288, 1291–92 (11th Cir. 1999)
(making sex offender therapy prerequisite for parole
eligibility rendered therapy ‘‘compelled treatment’’ akin
to ‘‘mandatory behavior modification’’ programs at
issue in Vitek); Chambers v. Colorado Dept. of Correc-
tions, 205 F.3d 1237, 1239–41 (10th Cir.) (reduction of
good time credits for failure to participate in sex
offender therapy was ‘‘coercive consequence’’ estab-
lishing ‘‘plus’’ factor), cert. denied, 531 U.S. 974, 121 S.
Ct. 419, 148 L. Ed. 2d 323 (2000). Courts have held to
this rule notwithstanding the representations of prison
officials that participation in sex offender treatment is
voluntary. Rather than rely on such characterizations,
courts consistently have looked to whether significant
negative consequences flowed from failure to partici-
pate in a ‘‘recommended’’ treatment program. See, e.g.,
Neal v. Shimoda, supra, 131 F.3d 822, 829 (rejecting
claim by prison officials that participation in treatment
was merely recommendation and voluntary, where
treatment was condition of parole eligibility). By con-
trast, courts have found no protected liberty interest
where an inmate has been labeled a sex offender and
provided with a recommendation for sex offender treat-
ment, but has been unable to demonstrate that he suf-
fered any negative consequences for failure to
participate in treatment. See Toney v. Owens, 779 F.3d
330, 340–41 (5th Cir. 2015).9
Connecticut law is not to the contrary. Although this
court has addressed inmates’ claims that state action
implicated a protected liberty interest, this appeal pre-
sents the first instance in which we are called upon to
apply the stigma plus test in resolving that question. In
fact, the two instances in which this court has consid-
ered the question of whether the actions of prison offi-
cials gave rise to a protected liberty interest, the court
resolved the issue by relying on authority that predated
and was disapproved by Sandin. Those cases, there-
fore, are not controlling. Specifically, in Baker v. Com-
missioner of Correction, supra, 281 Conn. 243, we
rejected the petitioner’s claim that he had been denied
parole eligibility status on the basis of his improper
classification as a violent offender, concluding that Con-
necticut’s statutory scheme does not create a cogniza-
ble liberty interest in parole eligibility status. The court
in Baker restricted its discussion, however, to state
created rights decisions that the United States Supreme
Court subsequently criticized in Sandin. Id., 253–54.
The court in Baker did not discuss Sandin, and it does
not appear that the petitioner claimed that he was stig-
matized by the classification. Earlier, in Wheway v. War-
den, supra, 215 Conn. 423, this court addressed the
question of whether an inmate’s classification as a maxi-
mum security prisoner solely on the basis of a parole
violation detainer implicated a protected liberty inter-
est. Wheway was decided well before Sandin. In con-
cluding that the prisoner had no protected liberty
interest in his classification, the court in Wheway relied
exclusively on the level of discretion enjoyed by prison
officials in making the classification determination; id.,
431; an approach that was subsequently criticized in
Sandin. Sandin v. Connor, supra, 515 U.S. 479.
Turning to the petitioner’s allegations, which we have
noted must be accepted as true, we conclude that they
are sufficient to allege a protected liberty interest, thus
invoking the jurisdiction of the habeas court. The peti-
tioner alleged that he was classified as a sex offender,
and that he was required to participate in sex offender
treatment, or risk forfeiting parole eligibility, commu-
nity release, and good time credits. These allegations
are precisely of the type that the majority of the courts
of appeals have found to be sufficient to allege a pro-
tected liberty interest, such that a hearing now may
proceed on the merits. See, e.g., Coleman v. Dretke,
supra, 395 F.3d 222–23. The allegations are sufficient
to invoke the jurisdiction of the habeas court.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of
victims of sexual assault, we decline to identify the alleged victim or others
through whom her identity may be ascertained. See General Statutes
§ 54-86e.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
We granted the respondent’s petition for certification to appeal, limited
to the following question: ‘‘Did the Appellate Court correctly reverse the
trial court’s judgment based on its determination that the trial court improp-
erly held that it lacked jurisdiction over the petitioner’s habeas petition
challenging his prison classification of sexual treatment needs?’’ Anthony
A. v. Commissioner of Correction, 319 Conn. 934, 125 A.3d 208 (2015).
2
On appeal, the respondent now seeks to dispute the facts as alleged in
the petition. For example, the respondent argues in his brief to this court
that the petitioner was merely assigned a ‘‘ ‘sexual needs treatment score,’ ’’
which the respondent contends is not the equivalent of labeling the petitioner
a sex offender. Even if we were not required on appeal to take the facts as
alleged in the petition for purposes of determining whether the court had
jurisdiction, the respondent waived this claim at the hearing on the petition.
At that time, the respondent had the opportunity to contest the petitioner’s
allegation that he had been labeled a sex offender. The respondent failed
to do so. Specifically, during the hearing, the court asked the respondent
whether he had any objection to the court taking the facts from the allega-
tions in the petition for the purpose of determining whether the petitioner
had alleged a cognizable liberty interest, and the respondent answered: ‘‘No
objection, Your Honor.’’ Later, the court stated: ‘‘I’m prepared to rule on
this matter and in my ruling I’m going to assume for purposes of this ruling
that the factual allegations by [the petitioner] are correct, in that he has
been classified as a sex offender when he was not really a sex offender.’’
At that point, the respondent could have disputed the petitioner’s allegation
that the respondent had classified him as a sex offender, but he elected not
to do so. Therefore, the respondent effectively has waived—at least for
purposes of determining whether the court has jurisdiction—any disputes
he may have as to the facts alleged in the petition.
3
For the risk assessment, the following factors are considered: ‘‘(1) [h]is-
tory of escape; (2) [s]everity/violence of the current offense; (3) [h]istory
of violence; (4) [l]ength of sentence; (5) [p]resence of pending charges, bond
amount and/or detainers; (6) [d]iscipline history; and, (7) [s]ecurity [r]isk
[g]roup membership.’’ Administrative Directive 9.2 (8) (A).
For the needs assessment, the following factors are considered: ‘‘(1)
[m]edical and health care; (2) [m]ental health care; (3) [e]ducation; (4)
[v]ocational training and work skills; (5) [s]ubstance abuse treatment; (6)
[s]ex offender treatment; and, (7) [c]ommunity resources.’’ Administrative
Directive 9.2 (8) (B).
4
It appears that, on July 7, 2012, a hearing was held to determine the
petitioner’s classification. The petitioner represents that he was not present
at the hearing, as was his right pursuant to the department’s Objective
Classification Manual, and was informed of his classification as a sex
offender only after the issue had been resolved.
5
In his trial brief, the petitioner claimed that he had been ostracized and
harassed as a result of the erroneous classification. He conceded, however,
that he could not prove that he had been harassed.
6
The petitioner’s current status is not clear from the record. That is, the
record does not reveal whether the petitioner was convicted of the new
charges, and, if so, whether he was sentenced to a term of incarceration
and once again classified as a sex offender. It remains possible, however,
that the respondent could, if the petitioner is again incarcerated, classify
him as a sex offender because the previous classification establishes that
he now has a prior history as an alleged sex offender. Accordingly, we agree
with the Appellate Court that the collateral consequences exception to the
mootness doctrine applies.
7
The court also concluded that the relevant Nebraska statutes had given
rise to a state created liberty interest. Vitek v. Jones, supra, 445 U.S. 488–
91.That analysis is not relevant to the present case.
8
Those courts have imported that requirement from Paul v. Davis, 424
U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), in which the court first set
forth the stigma plus test, albeit in a different context. See, e.g., Vega v.
Lantz, supra, 596 F.3d 81 (citing to decisions, including Paul, for proposition
that ‘‘[t]o establish a stigma plus claim, a plaintiff must show (1) the utterance
of a statement sufficiently derogatory to injure his or her reputation, that
is capable of being proved false, and that he or she claims is false, and (2)
a material state-imposed burden or state-imposed alteration of the plaintiff’s
status or rights.’’ [Emphasis added; internal quotation marks omitted.])
In Paul, an individual’s name and photograph appeared on a law enforce-
ment flyer that was captioned ‘‘ ‘Active Shoplifters’ ’’ and distributed by the
police to local retailers. Paul v. Davis, supra, 695. The court, holding that
the individual’s due process claim against the police was not cognizable,
explained that an individual alleging defamation type claims against public
officials must prove not only stigma, but also the ‘‘plus,’’ i.e., that a ‘‘right
or status previously recognized by state law was distinctly altered or extin-
guished’’ in connection with the alleged defamation. Id., 711–12. Because
the case arose in the defamation context, litigants asserting a stigma plus
claim pursuant to Paul have been required to allege the falsity of the govern-
mental statements or classifications. See, e.g., O’Connor v. Pierson, 426
F.3d 187, 195 (2d Cir. 2005) (requiring plaintiff to allege government action
imposing tangible and material burden, in connection with false statement
that damaged reputation).
9
The only court of appeals that has arrived at the opposite conclusion is the
United States Court of Appeals for the Seventh Circuit, which, in Grennier v.
Frank, 453 F.3d 442, 446 (7th Cir. 2006), rejected a claim by a Wisconsin
inmate that his wrongful classification as a sex offender, taken together
with the conditioning of parole eligibility on his participation in a sexual
disorder treatment program, implicated a protected liberty interest. Although
the inmate’s claim set forth a classic stigma plus claim, the court concluded
that no protected liberty interest was implicated because parole for inmates
serving life sentences in Wisconsin is wholly discretionary, as compared to
inmates with fixed terms, who are presumptively entitled to parole after
serving two-thirds of their sentences. Id., 444. Grennier, however, relies
primarily on the line of cases; id., 444, 446; that Sandin expressly criticized
as establishing a ‘‘mechanical dichotomy’’ of mandatory versus discretionary
decisions. Sandin v. Connor, supra, 515 U.S. 479.