author: Per Curiam.

text:
    Ludmil Chotkowski v. State of Connecticut
    (13683)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued October 4
    decision released November 21, 1989

      Robert J. Krzys, for the appellant (plaintiff).

      Taka Iwashita, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (state).
   Per Curiam.

In this action for breach of an employment contract the trial court rendered summary judgment for the defendant state of Connecticut on the ground that the plaintiff, Ludmil Chotkowski, as a state employee in the classified service, had no contractual rights, express or implied, against the state as his employer but only those rights made available to state employees by statute. The plaintiff has appealed from the judgment, claiming that his suit can be maintained because the claims commissioner has authorized him to bring the action against the state pursuant to General Statutes § 4-160 (a). He relies upon the provision declaring that, when a suit has been authorized by the commissioner, as in this case, “[t]he rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”

As an alternate ground for affirming the judgment, the state has presented its defense, raised below but not addressed by the trial court, that the authorization granted by the claims commissioner is ineffective because it is based on a special act of the legislature that violates article first, § 1 of our state constitution, which prohibits anyone from receiving “exclusive public emoluments or privileges from the community.” It is undisputed that, when the plaintiff first presented his notice of claim to the commissioner pursuant to General Statutes § 4-147, no award was made because the claim was barred by the one year limitation for presenting claims against the state prescribed by General Statutes § 4-148 (a).* *** The legislature rejected the commissioner’s recommendation, however, and enacted a special act allowing the plaintiff to prosecute his claim against the state despite the untimely notice. After this enactment the plaintiff reasserted his claim before the commissioner, who, in reliance on the special act, granted the plaintiff permission to sue the state in accordance with § 4-160.

The trial court refrained from deciding the issue of the constitutionality of the special act because its conclusion that the plaintiff could not prevail on the merits made it unnecessary to do so. “Constitutional issues are not considered unless absolutely necessary to the decision of a case . . . or unless sufficient public interest warrants such a review.” State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974). In this case, however, the constitutional issue of the validity of the special act that induced the claims commissioner to authorize the plaintiff to sue the state involves jurisdiction and should properly have been decided before considering the merits of the action. Accordingly, we do not reach the substantive issues involving the merits of the plaintiffs cause of action, because our disposition of the constitutional issue signifies a lack of jurisdiction. For this reason we find error in the form of judgment and remand the case with direction to render a judgment of dismissal for lack of jurisdiction.

In a recent decision of this court, Merly v. State, 211 Conn. 199, 558 A.2d 977 (1989), we held that a special act allowing a claimant to sue the state despite failure to present his claim to the claims commissioner within the time allowed by § 4-148 (a) constituted the grant of “exclusive public emoluments or privileges” in violation of article first, § 1. “No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual.” State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952). “Only if an act serves some public purpose can it be constitutionally sufficient.” Tough v. Ives, 162 Conn. 274, 292, 294 A.2d 67 (1972).

“Under circumstances like those in the present case, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment.” Merly v. State, supra, 213; Vecchio v. Sewer Authority, 176 Conn. 497, 503-507, 408 A.2d 254 (1979). This plaintiff has been no better able than the plaintiff in Merly to identify any public purpose to be served by the special act. He does not even claim, as was done in Merly, that the state caused the delay in presenting his claim to the claims commissioner, “a situation which would afford strong legislative grounds for legislative interference.” Sanger v. Bridgeport, 124 Conn. 183,189,198 A. 746 (1938). The only consideration he advances is that the legislature may have intended to recognize “an honorary obligation so that substantial justice could be realized.” Hillier v. East Hartford, 167 Conn. 100, 104-105, 355 A.2d 1 (1974); see Vecchio v. Sewer Authority, supra, 506-507.

The “honorary obligation” relied upon by the plaintiff, however, is based wholly upon the asserted merit of his cause of action for breach of contract and does not implicate the delay in filing his claim with the claims commissioner. If the limitation of § 4-148 (a), requiring a claim against the state to be presented within one year after its accrual, could be set aside for the benefit of a particular person simply because the legislature viewed his claim as meritorious, it would be difficult to justify enforcing the limitation to bar any claim against the state from being resolved solely on its merits. It is inevitable that such a limitation does defeat some worthy claims that have not been timely presented, as the legislature must have realized when it enacted § 4-148 (a). Our state constitutional ban on awarding “exclusive public emoluments or privileges from the community” is indifferent to the wisdom of such a limitation as contained in § 4-148 (a), but insists that, so long as it remains, it must be applied uniformly to all claimants.

Because we conclude that this case is indistinguishable from our recent decision in Merly, we conclude that the summary judgment adjudicating the merits of the plaintiffs action must be set aside and judgment of dismissal for lack of jurisdiction over the defendant must be rendered.

There is error in the form of the judgment, the judgment is set aside and the case is remanded with direction to render a judgment of dismissal for lack of jurisdiction over the defendant.

       The present action is related to an earlier suit by the plaintiff in which he appealed his dismissal as chief of medicine at the Veterans Home and Hospital in Rocky Hill. The state personnel appeal board rejected his appeal on the ground that he was not a permanent employee in the classified service and thus had no right to appeal his dismissal.
      The plaintiff then appealed the decision of the state personnel appeal board. The trial court sustained his appeal and this court affirmed that decision in Chotkowski v. Connecticut Personnel Appeal Board, 176 Conn. 1, 404 A.2d 868 (1978). After the case had been remanded to the state per- ' sonnel appeal board, the parties reached a settlement of the plaintiff s claims relating to the termination of his employment. Thereafter, on October 4, 1979, the plaintiff filed with the claims commissioner notice of his present claim, which involves a reduction in his pay for the period October 14,1975, through April 8, 19.76.

       “[General Statutes] Sec. 4-160. authorization of actions against the state, (a) When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. In each such action the claimant shall allege such authorization and the date on which it was granted. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”

       Article first, § 1 of our state constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

         “[General Statutes] Sec. 4-147. notice of claim, filing fees. Any person wishing to present a claim against the state shall file with the clerk of the office of the claims commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested, and (4) a request for permission to sue the state, if such permission is sought. A notice of claim, if sent by mail, shall be deemed to have been filed with the office of the claims commissioner on the date such notice of claim is postmarked. Claims in excess of one thousand dollars shall be accompanied by a check or money order in the sum of twenty-five dollars payable to the treasurer, state of Connecticut. Claims for one thousand dollars or less shall be accompanied by a check or money order in the sum of ten dollars payable to the treasurer, state of Connecticut. Fees may be waived by the commissioner for good cause but such action by the commissioner shall not relieve the claimant from the obligation of filing his notice of claim in timely fashion within the statute of limitations under section 4-148. The clerk of the office of the claims commissioner shall promptly deliver a copy of the notice of claim to the attorney general. Such notice shall be for informational purposes only and shall not be subject to any formal or technical requirements, except as may be necessary for clarity of presentation and facility of understanding.”

       “[General Statutes] Sec. 4-148. limitation on presentation of claim. (a) No claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.”

       Special Act No. 85-24, approved on May 13, 1985, entitled “AN ACT VALIDATING THE FILING OF NOTICE OF THE CLAIM OF LUDMIL CHOTKOWSKI WITH THE CLAIMS COMMISSIONER,” provided: “Be it enacted by the Senate and House of Representatives in General Assembly convened:
      “The claim of Ludmil Chotkowski, filed against the state of Connecticut with the claims commissioner, otherwise valid except that proper notice of said claim was not filed with the clerk of the office of the claims commissioner as required by section 4-147 of the general statutes and within the time specified by section 4-148 of the general statutes, is validated and declared sufficient to permit Ludmil Chotkowski to maintain and prosecute his claim against the state notwithstanding the lack of proper notice. The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes with respect to the claim and shall also be barred from denying that notice of the claim was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes.”

         This court has not always recognized that, when a special act authorizing a suit has been declared unconstitutional, the invalidity of the act often defeats jurisdiction to entertain the action. See Merly v. State, 211 Conn. 199, 558 A.2d 977 (1989); Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 (1974); cf. Vecchio v. Sewer Authority, 176 Conn. 497, 507, 408 A.2d 254 (1979).

       The defendant raised the jurisdictional issue in the trial court by a motion to dismiss on the ground of its sovereign immunity based upon the unconstitutionality of the special act relied upon by the plaintiff. The court, Hale, J., denied the motion, believing that the constitutional issue could not be raised by a motion to dismiss. When the constitutionality of a statute implicates the jurisdiction of the court, however, a motion to dismiss may properly serve as a vehicle for presenting such an issue. A jurisdictional issue may be raised at any time. Concerned, Citizens of Sterling v. Sterling, 204 Conn. 551, 529 A.2d 666 (1987). “Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.” Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Alex Ruskewich et al. v. Commissioner of Revenue Services
    (13690)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued October 4
    decision released November 21, 1989

      Robert L. Klein, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant (defendant).

      Alex Ruskewich, pro se, with whom, on the brief, was Ritva Ruskewich, pro se, the appellees (plaintiffs).
   Callahan, J.

This is an appeal by the defendant commissioner of revenue services (commissioner) from the judgment of the Superior Court setting aside an assessment of additional capital gains tax against the plaintiffs Alex and Ritva Ruskewich (taxpayers). The issue presented is whether the taxpayers can carry over and deduct a capital loss to calculate net gain on their Connecticut capital gains and dividends tax return when they reported no carryover loss on their federal income tax return for the same taxable year.

The commissioner disallowed the capital loss carryover, assessed a tax deficiency against the taxpayers, and denied the taxpayers’ appeal of the assessment. Thereafter, the taxpayers appealed to the Superior Court, which decided the case on the basis of stipulated facts. That court set aside the commissioner’s assessment. The commissioner appealed to the Appellate Court and we transferred the matter to this court, pursuant to Practice Book § 4023. We find no error.

The stipulation reveals the following facts. The taxpayers moved to Connecticut in April, 1981. On their 1981 federal income tax return they reported capital gains totaling $32,799 and capital losses totaling $13,822 for a net gain of $18,977. Since the taxpayers realized the capital gains prior to April, they only reported the $13,822 capital loss on their 1981 Connecticut capital gains and dividends tax return.

In 1983, the taxpayers realized capital gains of $41,746, of which $21,276 was included in their adjusted gross income on their federal income tax return. They did not report any capital loss carryover from prior years. In contrast, on their Connecticut tax return, they reduced the $21,276 net taxable gain by $13,644, the unused capital loss carryover from 1981. The taxpayers reported a net gain of $7632 on their Connecticut tax return.

The commissioner disallowed the capital loss carryover claiming that General Statutes (Rev. to 1983) §§ 12-505 and 12-506 only allow a loss carryover for Connecticut purposes when it is used in the computation of net gain on the taxpayers’ federal income tax return. The taxpayers disagree with the commissioner’s assessment and argue that General Statutes (Rev. to 1983) § 12-505 incorporates federal tax law and requires the taxpayers to utilize the federal tax system for calculating capital gain. Accordingly, they argue, the taxpayers could offset the capital loss carryover against capital gains in 1983 in accordance with federal law.

Our well established principles of statutory construction are designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment [and] to the legislative policy it was designed to implement . . . . ” Id.; Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987); Kellems v. Brown, 163 Conn. 478, 502-503, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973).

This court pays considerable deference to the commissioner’s interpretation of tax statutes and regulations. Clinton Nurseries, Inc. v. Commissioner of Revenue Services, 205 Conn. 761, 765, 535 A.2d 361 (1988). Where, however, the issue has not previously been the subject of judicial scrutiny, has not been the subject of a legislatively approved regulation and is not a time-tested interpretation of the statute, the commissioner’s interpretation of the statute is not entitled to special deference. Dine Out Tonight Club, Inc. v. Department of Revenue Services, 210 Conn. 567, 570 n.3, 556 A.2d 580 (1989). While statutes that provide an exemption or deduction from taxation must be strictly construed in favor of the taxing authority; Clinton Nurseries, Inc. v. Commissioner ofRev-enue Services, supra, 764; Skaarup Shipping Corporation v. Commissioner, 199 Conn. 346, 352, 507 A.2d 988 (1986); “[i]t is also true . . . that such strict construction neither requires nor permits the contravention of the true intent and purpose of the statute as expressed in the language used.” Jewett City Savings Bank v. Board of Equalization, 116 Conn. 172, 185, 164 A. 643 (1933); Phelps Dodge Copper Products Co. v. Groppo, supra, 129; Hartford Hospital v. Hartford, 160 Conn. 370, 375, 279 A.2d 561 (1971).

General Statutes (Rev. to 1983) § 12-506 (a) (2) imposes a capital gains tax upon “all net gains from the sale or exchange of capital assets.” General Statutes (Rev. to 1983) § 12-505 (A) defines “gains from the sale or exchange of capital assets” as the “net gain as determined for federal income tax purposes, after due allowance for losses and holding periods ... (2) from transactions or events taxable to the taxpayer as such sales or exchanges, and being the net amount includable in the taxpayer’s adjusted gross income, with respect to all such sales, exchanges, transactions, or events, under the provisions of the Internal Revenue Code in effect for the taxable year.” Section 12-505 provides further that, “ ‘adjusted gross income’ means adjusted gross income for federal income tax purposes.”

The commissioner’s argument focuses upon the language that defines “net gain” as being the “net amount includable in the taxpayer’s adjusted gross income . . . under the provisions of the Internal Revenue Code in effect for the taxable year.” General Statutes (Rev. to 1983) § 12-505 (A) (2). The commissioner urges us to construe “net gain” to mean the net amount included in the taxpayers’ adjusted gross income on their federal income tax return for that particular year. Accordingly, the commissioner argues, since the taxpayers did not deduct a capital loss carryover against capital gains to arrive at their adjusted gross income for federal purposes for 1983, they could not deduct a capital loss carryover for state purposes. In other words, the “net gain” for state tax purposes must be exactly the same number as “net gain” for federal tax purposes. We disagree.

In seeking to discern the intent of the legislature, we look to the words of the statute as a whole to offer guidance. General Statutes (Rev. to 1983) § 12-505 (A) states that taxable net gains are those defined for federal income tax purposes “after due allowance for losses and holding periods.” The legislature clearly intended that losses be accounted for when “net gain” is computed. The only guidance the legislature gives on how to account for losses is through its reference to federal tax law.

“This court has consistently held that when our tax statutes refer to the federal tax code, ‘federal tax concepts are incorporated into state law.’ The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 7, 490 A.2d 991 (1985); Yaeger v. Dubno, 188 Conn. 206, 210, 211-12, 449 A.2d 144 (1982); Woodruff v. Tax Commissioner, 185 Conn. 186, 191, 440 A.2d 854 (1981); Peterson v. Sullivan, 163 Conn. 520, 525, 313 A.2d 49 (1972); Kellems v. Brown, [supra, 518-19]; First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 489-93, 115 A.2d 455 (1955), appeal dismissed, 350 U.S. 927, 76 S. Ct. 305, 100 L. Ed. 811 (1956); McKesson & Robbins, Inc. v. Walsh, 130 Conn. 460, 461-64, 35 A.2d 865 (1944).” Harper v. Tax Commissioner, 199 Conn. 133, 139, 506 A.2d 93 (1986); Skaarup Shipping Corporation v. Commissioner, supra, 351. General Statutes (Rev. to 1983) § 12-505 makes repeated references to the federal tax code. Specifically, the statute refers to “net gain as determined for federal income tax purposes . . . and being the net amount includable in the taxpayer’s adjusted gross income . . . under the provisions of the Internal Revenue Code in effect for the taxable year.” (Emphasis added.) General Statutes (Rev. to 1983) § 12-505 (A) (2). Both the language of the statute and long-standing precedents of this court support the conclusion that § 12-505 incorporates the federal tax system of taxing capital gain income. Harper v. Tax Commissioner, supra, 139; Peterson v. Sullivan, supra, 525; Kellems v. Brown, supra, 515. The statute explicitly refers to the provisions of the Internal Revenue Code and not simply to an amount calculated on the federal tax return.

There is no dispute that, under the federal tax code, capital losses can be carried over to succeeding tax years to offset capital gains. See 26 U.S.C. §§ 1212 (b) (1) and 1222. Since § 12-505 makes no express provision for the treatment of capital losses except by way of reference to federal law, the legislature evidently intended to incorporate the federal method of treating capital loss carryovers.

Our conclusion is based upon our holding in Kellems v. Brown, that is, that the intent of the legislature in enacting § 12-505 was to incorporate federal tax law. In Kellems v. Brown, supra, this court construed the term “net gain” in order to determine whether § 12-505 allowed a deduction for long term capital gains equivalent to that allowed under 26 U.S.C. § 1202 of the federal tax code. Despite the fact that § 12-505 did not make a specific reference to the § 1202 deduction, this court construed the statute to incorporate the deduction. Id., 510-17. We emphasized that (1) the statute makes repeated references to federal income tax law, and (2) § 12-505 defines net gains as they are defined for federal income tax purposes “after due allowance for losses and holding periods.” Id., 512. The reference to “holding periods” indicated that the legislature intended to afford different treatment for long term as opposed to short term capital gains. This distinction would only make sense if the long term capital gains preference was allowed.

The commissioner maintains that § 12-506 allows a deduction only for losses incurred in the current taxable year. General Statutes (Rev. to 1983) § 12-506 (a) provides in pertinent part: “A tax is hereby imposed on . . . all net gains from the sale or exchange of capital assets which have been earned, received in fact or constructively, accrued or credited to the taxpayer during his taxable year . . . . ” The commissioner argues that “taxable year” means the current tax year and therefore, by definition, cannot incorporate a tax loss carryover. The difficulty with this reasoning, however, is that General Statutes (Rev. to 1983) §§ 12-505 and 12-506 do provide for capital loss carryovers.* *** In fact, the commissioner concedes as much. According to the commissioner’s interpretation of the statute, the only time a taxpayer would not be allowed to carry over a loss would be in a situation such as the current case where the taxable year for Connecticut tax purposes is shorter than the taxable year for federal income tax purposes. We are unpersuaded that this is the proper reading of the statute. We conclude that §§ 12-505 and 12-506 allow the taxpayer to apply federal tax principles, regardless of the length of the taxable year.

Our conclusion is consistent with the general purpose of loss carryover deductions. “Such deductions counteract the inequity that may result from breaking up taxable activity into relatively short periods of time and taxing a discrete income producing period without regard to a preceding period of loss.” The B.F. Goodrich Co. v. Dubno, supra, 9. In summary, § 12-505 allows the taxpayers to deduct their capital loss carryover on their 1983 return even though the capital loss occurred in 1981 because they would otherwise be deprived of a benefit that the statute affords them simply because their taxable year for Connecticut tax purposes in 1981 was shorter than the calendar year.

There is no error.

In this opinion the other justices concurred.

       The taxpayers’ brief also claims that the commissioner’s interpretation of the statute violates the equal protection clause of both the United States and Connecticut constitutions. As the taxpayers conceded at oral argument, however, the constitutional claim was not raised and ruled upon by the trial court and therefore was not an issue properly before this court.

       The commissioner does not, nor can he, dispute the propriety of the taxpayers’ treatment of the capital gains on their 1981 Connecticut tax return. General Statutes § 12-505 defines taxable year as, “the same accounting period as the taxpayer’s taxable year for federal income tax purposes or that portion of such year as either commences when the taxpayer becomes a resident or ends when the taxpayer ceases to be a resident of this state . . . . ” Accordingly, the taxpayers were not required to report the capital gains realized prior to their relocation to Connecticut in their Connecticut tax return in 1981. For federal tax purposes, however, the capital losses were netted against the capital gains.

       At oral argument, the question was posed from the bench whether, under federal tax law, the taxpayers properly calculated the amount of capital gain that should be included in their adjusted gross income. It appears that the taxpayers deducted the capital loss carryover from the net gain after the computation of the net capital gains deduction, allowed pursuant to 26 U.S.C. (Rev. to 1982) § 1202. Instead, the taxpayers should have subtracted the capital loss from capital gains before the § 1202 deduction as required by federal tax law. See 26 U.S.C. (Rev. to 1982) §§ 1202 (a), 1212 (b) (1) and 1222.

       “[General Statutes (Rev. to 1983)] Sec. 12-505. definitions. When used in this chapter, unless the context otherwise requires: ‘Taxpayer’ means a husband and wife both of whom are residents in this state and who file for the taxable year a single federal income tax return jointly, and each and every other individual resident in this state, who have or has earnings received, credited or accrued in any taxable year from gains from the sale or exchange of capital assets, or from dividends subject to tax under this chapter; ‘taxable year’ means the same accounting period as the taxpayer’s taxable year for federal income tax purposes or that portion of such year as either commences when the taxpayer becomes a resident or ends when the taxpayer ceases to be a resident of this state; ‘dividends’ means those dividends taxable for federal income tax purposes without regard to the dividend exclusion; ‘commissioner of revenue services’ or ‘commissioner’ means the commissioner of revenue services: ‘gains from the sale or exchange of capital assets’ means (A) net gain as determined for federal income tax purposes, after due allowance for losses and holding periods, (1) from sales or exchanges of capital assets or assets treated as capital assets, other than notes, bonds or other obligations of the state of Connecticut or any of the political subdivisions thereof, or its or their respective agencies or instrumentalities, or (2) from transactions or events taxable to the taxpayer as such sales or exchanges, and being the net amount includable in the taxpayer’s adjusted gross income, with respect to all such sales, exchanges, transactions, or events, under the provisions of the Internal Revenue Code in effect for the taxable year and (B) net gains from sales or exchanges of certain depreciable property, not includable in the taxpayer’s adjusted gross income as net capital gains subject to the deduction allowed under Section 1202 of the Internal Revenue Code, but includable in such adjusted gross income as supplemental gains determined in accordance with Internal Revenue Service Form 4797; ‘resident’ means an individual: (1) Who is domiciled in this state; provided, if the individual maintains no permanent place of abode in this state, maintains a permanent place of abode elsewhere, and spends in the aggregate not more than thirty days of the taxable year in this state, he shall be deemed not a resident; or (2) who is not domiciled in this state but maintains a permanent place of abode in this state and is in this state for an aggregate of more than one hundred eighty-three days of the taxable year, unless he, not being domiciled in this state, is in the armed forces of the United States; ‘person’ means the taxpayer or any pledgee, assignee, receiver, referee, trustee, conservator, guardian, custodian or other fiduciary of the taxpayer acting for the taxpayer; ‘adjusted gross income’ means adjusted gross income for federal income tax purposes.”

       “[General Statutes (Rev. to 1983)] Sec. 12-506. IMPOSITION OF TAX ON dividends and capital gains, (a) A tax is hereby imposed on (1) all dividends earned, received in fact or constructively, accrued or credited to the taxpayer during his taxable year except that no such tax shall be imposed unless the taxpayer’s adjusted gross income in such year equals or exceeds twenty thousand dollars, in accordance with the following schedule:
      Adjusted Gross Income Rate of Tax
      In Taxable Year On All Dividends
      At least $20,000 but less than $22,000 1%
      At least $22,000 but less than $24,000 2%
      At least $24,000 but less than $28,000 3%
      At least $28,000 but less than $30,000 4%
      At least $30,000 but less than $35,000 6%
      At least $35,000 but less than $40,000 7%
      At least $40,000 but less than $50,000 7.5%
      At least $50,000 but less than $100,000 8%
      $100,000 and over 9%
      and (2) at the rate of seven per cent on all net gains from the sale or exchange of capital assets which have been earned, received in fact or constructively, accrued or credited to the taxpayer during his taxable year subject to the exemptions allowed in section 12-506c, and section 12-506Í, when applicable.”

       For federal tax purposes, the taxpayers took advantage of the capital loss and offset it against capital gains on their 1981 tax return. Therefore, for federal purposes, a capital loss carryover was not available to the taxpayers in 1983.

       At oral argument, the commissioner claimed that the legislature amended General Statutes § 12-505 subsequent to the Kellems v. Brown, 163 Conn. 478,313 A.2d 53 (1972) decision to clear up the ambiguous wording of the statute. Yet when the commissioner filed a motion with the trial court to open the judgment for reargument and or articulation, he stated: “There has been no change in the pertinent language in the present statute from that in the 1971 statute that the court interpreted in Kellems.” We agree that the changes made in the statute subsequent to the Kellems decision did not alter our holding that § 12-505 incorporates the federal tax system of taxation.

       In 1971, the legislature specifically deleted from General Statutes § 12-505 a provision which disallowed any reduction for loss carryovers or loss carrybacks. Public Acts, Spec. Sess., June, 1971, No. 8, § 9.


author: Hull, J.

text:
    Hal Eis et al. v. Mary D. Meyer
    (13701)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued October 5
    decision released November 21, 1989

      Myra L. Graubard, for the appellants (plaintiffs).

      Gordon R. Paterson, for the appellee (defendant).
   Hull, J.

The plaintiffs, Hal and Shirley Eis, instituted an action seeking, inter alia, an injunction prohibiting the defendant, Mary D. Meyer, from obstructing their use of an express easement across her land. The trial court, in accordance with the recommendation of the attorney state trial rpferee, rendered judgment for the plaintiffs, declaring the easement to be in full force and effect and enjoining the defendant from hindering or interfering with the plaintiffs’ use and enjoyment of that easement. The defendant appealed this judgment to the Appellate Court. Upon determining that the trial court had erred in failing to find termination of the easement by its express terms when the plaintiffs enlarged their house located on the dominant tenement, the Appellate Court set aside the judgment of the trial court. Eis v. Meyer, 17 Conn. App. 664, 555 A.2d 994 (1989). We granted certification of the plaintiffs’ appeal from the Appellate Court limited to two issues: (1) Did the Appellate Court err in rejecting the finding of the referee that the defendant was estopped from enforcing the terms of the easement due to her deliberate silence with respect to the plaintiffs’ plans to enlarge their house; and (2) is there an implied covenant of good faith and fair dealing between the ser-vient and dominant tenement owners in relation to the terms of an easement, and, if so, did the defendant’s failure to object seasonably to the plaintiffs’ construction plans constitute a breach of that covenant? We affirm the decision of the Appellate Court.

The underlying facts, as found by the referee, are as follows. The parties are adjoining property owners residing on Woodbine Road in Stamford. The plaintiffs can gain access to their home via two routes: a main entrance and driveway that leads directly from Woodbine Road to the front of their house, and a right of way onto the rear of their property created by an easement that bisects the defendant’s property. The history of the creation of the easement is fully reported in the opinion of the Appellate Court. Eis v. Meyer, supra, 665-66. For the purposes of the present appeal, it is necessary to note that the easement, in its final form, was recorded in the Stamford land records in 1955. The specific terms of the grant of easement stated in relevant part that it would “cease, terminate and be extinguished at any time when any building is erected on any part of the land now owned by the Grantee [now the plaintiffs] in addition to the buildings now on said land, or when any building on said land is enlarged . . . .” (Emphasis added.)

The plaintiffs purchased their property on July 28, 1977. The deed of conveyance made specific reference to the easement and the plaintiffs, by their own admission, were aware of the terms and conditions of the easement when they purchased their property. Nevertheless, in 1978, the named plaintiff, during a chance meeting with the defendant, informed her of his plans to renovate his house by constructing an addition to the kitchen. The defendant, consciously aware that the construction would be in violation of the easement, did not respond or react when she was told of the plans. Thereafter, the plaintiffs added a 230 square foot addition to their house. Claiming that the enlargement of the house extinguished the easement over her property, the defendant, in June, 1981, notified the plaintiffs that she intended to block off the easement area.

The action that was subsequently filed by the plaintiffs was tried before an attorney state trial referee who ultimately recommended judgment for the plaintiffs. The trial court accepted the report and corrected findings of the referee, and, accordingly, declared the easement to be in full force and effect despite the enlargement of the plaintiffs’ house. This decision, as discussed by the Appellate Court, was premised on two grounds. “First, [the trial court] concluded that the improvements made by the plaintiff were ‘insignificant’ and that the original parties to the agreement creating the easement had not intended to ‘prevent an owner from maintaining, improving, or updating the large house as the need arose.’ Second, the trial court found that the defendant, by her silence, had induced the plaintiffs to proceed with the renovations in derogation of their easement rights and was, therefore, estopped from enforcing the terms of the easement.” Eis v. Meyer, supra, 667.

The Appellate Court, while accepting the factual findings of the referee, disagreed with its legal conclusions. First, recognizing that when the language of an easement is clear and unambiguous, the court must examine its express terms and not resort to extraneous circumstances or parol evidence, the Appellate Court, accordingly, found error in the referee’s expansion of the clear meaning of the agreement. Id., 668-69. “The meaning and effect of the words are to be determined not by what may have been intended by the parties, but the intent that was actually expressed. . . . According to the express terms of the deed, the easement terminated when the plaintiffs enlarged their home.” (Citation omitted.) Id., 669-70. With respect to the second basis for the trial court decision, the Appellate Court stated: “Because the trial court expressly found in his corrected findings that the deed of conveyance specifically referred to the easement and the plaintiffs were aware of the terms of the easement when they purchased the property, the trial court erred in concluding that the requisite elements of estoppel had been met in this case.” Id., 670 n.2.

On certification to this court, the two claims presented by the plaintiffs focus on the defendant’s deliberate silence during her 1978 conversation with the named plaintiff and question the legal significance attributed to that silence by the Appellate Court. First, the plaintiffs contend that the Appellate Court erred in rejecting the referee’s finding that the effect of the defendant’s silence was to estop her from enforcing the termination of the easement. The premise of their argument is that under the specific facts here involved the defendant had a duty to inform the named plaintiff of her future intentions with respect to the easement if he were in fact to enlarge his home. According to the plaintiffs, at the time of the conversation between the named plaintiff and the defendant, the defendant believed that termination of the easement would result from the planned construction, and, at the very least, knew that she would assert such a position. The plaintiffs’ understanding at the time of the conversation, on the other hand, was that the renovation of the house would not affect the easement. The defendant’s deliberate silence after having been informed of the construction plans, according to the plaintiffs, was intended to, and in fact did, induce them to build the addition to their home. Accordingly, the plaintiffs argue that the doctrine of estoppel prohibits the defendant from enforcing the termination of the easement. We do not agree.

“ ‘Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., [170 Conn. 344, 353, 365 A.2d 1093 (1976)]; Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962).’ Zoning Commission v. Lescynski, [188 Conn. 724, 731, 453 A.2d 1144 (1982)].” Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987). “ ‘In a case where . . . silence is the conduct relied upon to give rise to the estoppel, the existence of circumstances which impose a duty upon the one claimed to be estopped to disclose the fact which is known is essential. . . . But there is no duty to speak where the facts are equally within the knowledge of both parties or where the one claiming the estoppel, though he has not in fact equal knowledge, has convenient and available means of acquiring it. . . . It is, moreover, necessary that the silence be such as would naturally mislead the other party . . . and that the party claiming the estoppel has been or will be subjected to loss unless he can have the advantage of it, and there is no presumption in his favor.’ Flaxman v. Capitol City Press, Inc., 121 Conn. 423, 430, 185 A. 417 [1936].” (Emphasis added.) State v. American News Co., 152 Conn. 101, 113, 203 A.2d 296 (1964).

If the plaintiffs were arguing merely that estoppel resulted from the defendant’s failure to inform the named plaintiff of the actual terms of the easement, the claim could be quickly dismissed. The referee expressly found in his corrected findings that the plaintiffs’ deed of conveyance specifically referred to the easement and that the plaintiffs were aware of the terms of the easement when they purchased the property. Therefore, there is no question that the express conditions of the easement were equally within the knowledge of both parties. The defendant thus had no duty to inform the named plaintiff of those conditions. The plaintiffs indeed concede their actual knowledge of the terms of the easement but assert that estoppel nevertheless applies in this case because the defendant’s intentions to enforce the terms of the easement as she understood them were within her sole knowledge. Because the plaintiffs could not know of the defendant’s “intentions,” the plaintiffs argue that the defendant had a duty not to remain silent.

We find this argument to be without merit. It presumes that extinguishment of the easement was governed not by the terms of the easement itself, but rather by the silence of the defendant. This simply is not the case. The principle of automatic termination of an easement according to the terms expressed by the grantor has long been recognized by this court. See, e.g., Wooding v. Michael, 89 Conn. 704, 706, 96 A. 170 (1915); Hall v. Armstrong, 53 Conn. 554, 556, 4 A. 113 (1885). The language of the grant of easement here at issue is unambiguous, and the referee did not find to the contrary. By the express terms of the easement, the plaintiffs’ right to use the easement would terminate when any building on their land was enlarged. The predicate for termination thus contemplated by the grant was a specified affirmative act on the part of the dominant tenement owners, not silence on the part of the servient tenement owner. “Unless the circumstances be such as naturally to mislead another, one of the indispensable elements of an equitable estoppel is absent.” (Emphasis added.) Goldberg v. Parker, 87 Conn. 99, 107, 87 A. 555 (1913). Because the defendant in no way misled the plaintiffs about the easement, the plaintiffs’ disregard of the conditions clearly expressed in a recorded document was not a natural consequence of the defendant’s silence. Accordingly, we hold that the doctrine of equitable estoppel is inapplicable to this case.

The plaintiffs next argue that the implied covenant of good faith and fair dealing recognized in contract law should be expanded to apply to cases involving easements. We refuse to apply this principle in the present case where the conditions of the easement by grant were clearly expressed.

The plaintiffs’ argument relies primarily on two decisions of this court in which we imposed a duty of good faith and fair dealing upon parties to a lease. See Warner v. Konover, 210 Conn. 150,154-56, 553 A.2d 1138 (1989); Central New Haven Development Corporation v. La Crepe, Inc., 177 Conn. 212, 216-17, 413 A.2d 840 (1979). The plaintiffs contend that these cases are instructive for two reasons: (1) both easements and leases affect real property; and (2) while, in form, an easement is a conveyance of an interest in land and a lease is a contract between a landlord and a tenant; Cohn v. Fennelly, 138 Conn. 474, 476, 86 A.2d 183 (1952); in substance, an easement is also a contract in that it is based on the concept of future performance. Accordingly, argue the plaintiffs, it is appropriate that this court follow its precedents of Warner and La Crepe, Inc., to impose a duty of good faith and fair dealing upon the defendant in relation to the terms of the easement. We do not agree. Even were we to find the necessary contractual component in the grant of easement here at issue, Warner and La Crepe, Inc., are not supportive of the plaintiffs’ position.

An implied covenant of good faith and fair dealing is “[essentially . . . a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The, principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy. See VTR, Inc. v. Goodyear Tire & Rubber Co., 303 F. Sup. 773 (S.D.N.Y. 1969); 3 Corbin, Contracts § 564, (1960); 11 Williston, Contracts (3d Ed. Jaeger) § 1295.” (Emphasis added.) Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567, 479 A.2d 781 (1984). As discussed above, the clearly expressed terms of the easement contemplated termination only upon an affirmative act of the dominant tenement owner. To imply a covenant of good faith and fair dealing in this case would achieve a result contrary to the express language of the easement, that is, termination would depend upon the silence of the servient tenement owner, rather than upon the action or inaction of the dominant tenement owner.

A very different set of facts was presented to this court in Warner v. Konover, supra. Warner involved a commercial lease in which the landlord had retained the discretion to withhold consent to the assignment of the tenant’s lease. Id., 152. The express terms of the lease, however, did not establish the parameters of that discretion. Id., 152-53. Accordingly, we held that implicit in the terms of the lease was that the landlord’s discretion must be exercised in a manner consistent with good faith and fair dealing. Id., 154-55. As authority for our decision we relied on Central New Haven Development Corporation v. La Crepe, Inc., supra. In La Crepe, Inc., a clause within a lease gave unfettered discretion to the tenant to cancel the lease upon the failure of a contingency. Id., 215. We held that because the lease was silent as to the time within which the option to cancel had to be exercised, it was implicit that cancellation had to be within a reasonable time after the failure of the contingency. Id., 216-17. The facts of the present case are clearly distinguishable. The terms of the easement, and more specifically, the terms concerning the termination of the easement, were clearly set forth in the instrument of conveyance. Unlike the result in Warner and La Crepe, Inc., the imposition of a duty of good faith and fair dealing upon the defendant, based on the facts here presented, would alter the clearly expressed terms of the easement. Thus, an implied covenant of good faith and fair dealing is inapplicable.

Therefore, we affirm the decision of the Appellate Court.

In this opinion the other justices concurred.


author: Peters, C. J.

text:
    Steven Asherman v. Larry Meachum, Commissioner of Correction
    (13611)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.

      Argued October 5
    decision released November 28, 1989

      Stephen J. O’Neill, assistant attorney general, with whom were Peter E. Wiese and Steven R. Strom, assistant attorneys general, and ClarineNardi Riddle, attorney general, for the appellant-appellee (respondent).

      William J. Tracy, Jr., for the appellee-appellant (petitioner).
   Peters, C. J.

The issue in this case is whether the due process rights of the petitioner, Steven Asherman, a convicted criminal, were violated by his transfer from supervised home release to a state correctional institution. The petitioner filed a petition for habeas corpus against the respondent, Larry Meachum, commissioner of the department of correction, seeking his release from confinement. After a hearing, the trial court granted the petition for a writ of habeas corpus and ordered the respondent either to return the petitioner to supervised home release or to discharge him from custody. The respondent obtained certification for appeal pursuant to General Statutes § 52-470 (b), whereupon the petitioner cross appealed. Pursuant to Practice Book § 4023, we transferred the appeal to this court. We find error and remand for the entry of judgment on behalf of the respondent.

This appeal constitutes the third case concerning this petitioner that has come to this court. In State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), we affirmed the petitioner’s conviction of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55 for the homicide of Michael Aranow. In Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987), we affirmed the denial of the petitioner’s petition for a new trial that he had based on the grounds of newly discovered evidence and alleged juror misconduct. Although the petitioner has steadfastly maintained his innocence throughout these proceedings, the present posture of this case is that the petitioner has been definitively adjudicated to have committed a serious and brutal crime, and hence is lawfully incarcerated.

As a result of his conviction, the petitioner was sentenced, on April 29, 1980, to a term of imprisonment of not less than seven nor more than fourteen years. He began to serve his sentence on March 19, 1985. Despite a somewhat “shaky” psychiatric evaluation, the respondent, on December 7,1987, granted the petitioner’s application for supervised home release. Pursuant to the terms attached by the respondent to the petitioner’s request, the petitioner was first placed in a halfway house, where for three months he was supervised and counseled. Having obtained an approved apartment in West Hartford and employment at CIGNA Insurance Company, he was then permitted to live in the community, subject to the continued direction of his supervising officer, Jack Tokarz. From the end of March, 1988, when he moved into his apartment, the petitioner fully complied with all the rehabilitative programs to which he was assigned.

The petitioner was eligible for parole at the time that his application for supervised home release was under consideration, but the parole board did not hold a hearing on his parole application until July 19, 1988. The parole board denied the petitioner’s application for three reasons: the seriousness of the petitioner’s offense; the absence of a finding that he could live and remain at liberty without violating the law; and the absence of a finding that his release would be compatible with the welfare of society. The petitioner was informed of the denial of his parole application, and of the reasons therefore. He has not challenged the validity of the denial of his parole. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 463-67,101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).

The denial of the petitioner’s parole triggered a renewed concern about the appropriateness of the petitioner’s home release status. The respondent testified that he would not have approved a request for home release if he had anticipated denial of the petitioner’s application for parole. In the respondent’s considered professional view, that denial could affect the propensity for flight of someone like the petitioner who, despite obvious intellectual gifts, had committed a heinous crime. Recalling his previous uncertainty about the earlier “shaky” psychiatric evaluation of the petitioner, the respondent ordered Tokarz, the petitioner’s supervising officer, to instruct the petitioner to report for an updated psychiatric reevaluation to be conducted on August 24 and August 25, 1988.

In response to this instruction, the petitioner’s attorney wrote a letter to the respondent that is of crucial significance to these proceedings. The letter protested the propriety of what counsel assumed to be a “reevaluation hearing,” and noted that a habeas corpus petition challenging the legitimacy of the petitioner’s conviction had recently been filed in federal court. It informed the respondent that the petitioner would not “participate in any interrogation which is related to the crime for which he was charged.” It asked the respondent not to misconstrue the petitioner’s “silence at this hearing” as anything other than compliance with the attorney’s instructions. Upon receipt of this letter, the respondent cancelled the planned psychiatric examination. When the petitioner appeared at the time and place designated by the respondent, the petitioner was reincarcerated at the Hartford Community Correctional Center. The respondent took the position that the petitioner, through his agent, had refused to submit to a psychiatric evaluation and notified the petitioner that this refusal violated conditions 1 and 11 of his home release program.* *

The petitioner was preliminarily notified of the reasons for his reincarceration in conjunction with a hearing that was held with reference thereto on September 1, 1988. Although originally denominated a disciplinary hearing, it was subsequently recast as a classification hearing, because the only sanction sought by the respondent was a redetermination of the level of security appropriate for the petitioner’s placement within the state’s custodial facilities for convicted criminals.* ** At this hearing, at which the petitioner appeared personally, accompanied by a prison advocate but not by his private counsel, he reiterated his view that he did not understand the need for a new psychiatric evaluation and had refused to participate therein on the advice of counsel. As a result of this hearing, the petitioner was removed from home release status and reclassified to a medium or minimum security prison facility.

In a letter dated September 7,1988, the respondent formally notified the petitioner of the reason why his transfer to supervised home release status was being suspended. The respondent noted that he had the statutory authority to review all inmates on home release status on a continuing basis. He reiterated his position that the denial of the petitioner’s parole application warranted the department of correction’s order to the petitioner to undergo a new psychiatric evaluation. The respondent stated that he found himself unable to ascertain the petitioner’s continued suitability for home release status because of the petitioner’s “refusal to fully participate in this psychiatric evaluation.” As a result, the respondent had concluded that the petitioner was no longer an appropriate candidate for home release status. The letter closed by informing the petitioner that he would be afforded a classification hearing to determine the particular correctional facility in which he would be confined.

The petitioner had previously, on the day of his initial reincarceration, filed a state court petition for a writ of habeas corpus alleging that his transfer to Hartford Community Correctional Center and reclassification to higher security violated his rights to due process under the United States and Connecticut constitutions. The trial court ruled in favor of the petitioner on this petition. In its memorandum of decision, the court first rejected the petitioner’s broad claim to a constitutionally protected liberty interest in his continued participation in a supervised home release program, with the attendant due process protections that such a constitutionally grounded liberty interest would have implicated. The court accepted, however, his narrower claim that state regulations had created a legitimate expectation of a liberty interest that the respondent had failed to respect. On this latter ground, the court ordered the petitioner either to be returned to supervised home release or to be discharged from custody altogether.

The present appeal and cross appeal challenge each of the trial court’s rulings of law. The respondent claims error in the court’s conclusions that (1) state law has conferred upon the petitioner a liberty interest in his home release status, and (2) the procedures used to transfer the petitioner out of home release status violated the petitioner’s rights to due process in a state created liberty interest. The petitioner, in his .cross appeal, maintains that the trial court erred in rejecting his claim that he had a constitutionally created liberty interest in retaining his home release status. We find error on the respondent’s appeal, and no error on the cross appeal.

I

“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Mathews v. Eldridge, 424 U.S. 319, 324-25, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). In the present case, therefore, in order to determine to what due process protections the petitioner was entitled, we must ascertain whether home release status confers upon a post-conviction incarcerated person: (1) a constitutionally created liberty interest to maintain that status; (2) a state created liberty interest to maintain that status; or (3) no due process rights at all. The respondent concedes, sub silentio, that the procedures employed in this case would not satisfy the standards appropriate to a claimed violation of a constitutionally created liberty interest. Our first inquiry must be, therefore, whether the trial court erred in deciding that home release status, unlike probation, did not confer upon the petitioner a protected liberty interest inherent in the due process clause of the United States constitution or the parallel due process clause of our state constitution. We find no error in this ruling.

The petitioner’s claim that he was deprived of a constitutionally protected liberty interest rests on Morris-sey v. Brewer, supra, 481-82, in which the United States Supreme Court held that the due process rights of a person on parole were to be measured according to this elevated standard. That court has thereafter ruled, however, that a prisoner’s transfer from one place of confinement to another does not infringe or implicate a constitutionally protected liberty interest. Olim v. Wakinekona, 461 U.S. 238, 244-48, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 468-69, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983); Montanye v. Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 225-26, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976); see also Kentucky Department of Corrections v. Thompson, 490 U.S. , 109 S. Ct. 1904, 1908-1909, 104 L. Ed. 2d 506 (1989); see generally L. Tribe, American Constitutional Law (2d Ed. 1988) § 10-10. The question before us, therefore, is whether the status of a person on home release more closely resembles that of a parolee or that of a person confined in a minimum security correctional institution.

For a number of reasons, we agree with the trial court that, under our statutes, the petitioner’s status on home release is, in point of law, distinguishable from that of a person on parole. It is true that, in ordinary circumstances, a person on home release lives as independently, under as little daily supervision, as does a person on parole. Nonetheless, for a person on home release status, that supervision, as a matter of law, continues to be vested in the department of correction, just as it does for any incarcerated inmate. General Statutes § 18-100 (e). A person on parole, by contrast, is in the “custody and control” of the board of parole. General Statutes §§ 54-125, 54-129. Even more significant, the law distinguishes sharply between home release and parole in the consequences it assigns to absconding from supervision. For a person on home release, as for any incarcerated prisoner, absconding constitutes a new crime, escape, that may lead to an added prison term. General Statutes § 53a-169 (a) (2). For a parolee, however, the only sanction for absconding is that a parole violator risks his return to the custody of the commissioner of correction for the unexpired portion of the term of his original sentence. General Statutes § 54-128.

In analogous cases involving prisoners at halfway houses, or conditionally assigned to educational release or work release programs, courts have uniformly held that transfer or reincarceration does not implicate a constitutionally protected liberty interest. Brennan v. Cunningham, 813 F.2d 1, 5 (1st Cir. 1987); Whitehorn v. Harrelson, 758 F.2d 1416, 1420 (11th Cir. 1985); Garcia v. De Batista, 642 F.2d 11, 14 (1st Cir. 1981); Jenkins v. Fauver, 108 N.J. 239, 247, 528 A.2d 563 (1987); People ex rel. Feliciano v. Waters, 99 App. Div. 2d 850, 472 N.Y.S.2d 455 (1984); Mitchell v. Meachum, 770 P.2d 887, 889 (Okla. 1988). These cases lend persuasive support to the trial court’s ruling in this case. We conclude, accordingly, that the petitioner had no constitutionally derived liberty interest.

II

The trial court ruled in the petitioner’s favor on the basis of two interconnected conclusions of law. The court first determined that state statutes, regulations and practices had so limited official discretion concerning the revocation of home release status as to confer upon the petitioner a liberty interest in the continuation of that status. Vitek v. Jones, 445 U.S. 480, 487-94, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (transfer to a mental hospital); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (loss of good time credits). The court then determined that the procedures attendant to the respondent’s reclassification of the petitioner in this case had failed to afford him the due process protections to which he was entitled. Testing the reclassification procedures in accordance with the standards imposed by Wolff v. McDonnell, supra, 563-67, the court concluded that the petitioner had not been afforded a meaningful hearing and was therefore entitled either to be returned to home release status or to be released from custody-altogether.

The respondent contests both of these conclusions. He calls to our attention a recent decision of the United States Supreme Court; Kentucky Department of Corrections v. Thompson, supra, 1909-10; articulating a two-part standard by which a state created liberty interest is to be measured. Under that standard, a state created liberty interest requires a showing that the state has enacted (1) “substantive predicates” to guide the discretion of the decisionmaker and (2) regulations that contain “explicitly mandatory language” requiring that a particular result must be reached upon a finding that the substantive predicates have been met. Id. That case, which was not available to the trial court at the time that it rendered its judgment, makes the issue of a state created liberty interest in home release status an exceedingly close question. General Statutes § 18-100 (d), on its face, confers considerable latitude upon the respondent to suspend the home release status of a person “whose conduct [the commissioner] believes is unsuitable for the continuation of such privileges.” The regulations promulgated to implement this section establish so-called “Conditions of Community Residence” that similarly authorize the commissioner to require unrestricted compliance with unspecified instructions of the supervising officer assigned to supervise a person on home release..

We need not resolve today the difficult question of whether the petitioner has established his entitlement to a state created liberty interest, because even if he had done so, he would still have to establish a violation of the due process rights that would flow from such an entitlement. We disagree with the trial court’s conclusion that the procedures employed by the respondent in this case failed to afford the petitioner the due process rights that a state created liberty interest would confer upon him.

The trial court correctly assessed the procedures that led to the petitioner’s reclassification in accordance with the standards set out in Wolff v. McDonnell, supra. These standards require advance written notice, an opportunity to call witnesses and present evidence, and a written statement by the factfinder of the evidence relied upon and the reasons for the action taken. The trial court concluded that the respondent had provided the requisite notice, a statement of resolution and an evidentiary hearing. We agree with these conclusions. The crucial question, according to the court, was whether the hearing that was held was “a meaningful one based on evidence.” Due process, under Wolff v. McDonnell, requires the findings of the factfinder to be “supported by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985).

In assessing the alleged evidentiary insufficiency of the petitioner’s reclassification proceeding, the trial court acknowledged that the respondent was empowered to make periodic assessments of the conduct of persons on home release status in order to ascertain their continued fitness to continue in this status without detriment to the welfare of society. General Statutes § 18-100 (d). Despite the petitioner’s argument to the contrary, we agree that the authority to initiate such a reassessment is a reasonable exercise of governmental authority; Thornburgh v. Abbott, 490 U.S. , 109 S. Ct. 1874, 1882-83, 104 L. Ed. 2d 459 (1989); Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); that need not be conditioned upon a preliminary finding of misconduct or breach of condition by the petitioner. A change of circumstances entirely beyond the control of a person on home release, such as the unforeseen death of a significant caretaker, may reasonably trigger an inquiry into current mental health. In this case, it was the denial of the petitioner’s parole application that served to trigger concern about his suitability to retain his status on home release. There is no finding in this case that the respondent’s issuance of an order for such a renewed inquiry on this ground was in any way pretextual or otherwise outside the appropriate bounds of his discretion. It hardly requires saying that an appropriate inquiry does not become inappropriate simply because the petitioner has elected to file a federal habeas corpus petition challenging the legality of his conviction.

The trial court nonetheless concluded that the respondent had adduced insufficient evidence to support his order returning the petitioner to custody. In the court’s view, the respondent misconstrued the essential purport of the letter sent to the respondent at the time that the petitioner was ordered to appear for a psychiatric evaluation. Although the letter stated that the petitioner’s counsel had instructed the petitioner “not to participate in any interrogation which is related to the crime with which he was charged,” the court held that the letter revealed the petitioner’s “willingness to participate in the requested psychiatric evaluation.” In reaching this result, the court did not call into question the credibility of the respondent’s testimony that he had construed the letter differently. The petitioner did not testify at the habeas hearing, so that his credibility was never at issue.

The trial court’s conclusion of evidentiary insufficiency cannot stand. Once it is accepted that the respondent has the authority to order updated mental health reports for persons on home release status, it follows that the petitioner, having been notified of his obligation to report for a psychiatric evaluation, did not have the right unilaterally to predetermine the scope of such an examination. The petitioner’s insistence on such a right, even in reliance upon the advice of counsel, was conduct that constituted some evidence of his unsuitability for continuation on home release. It is noteworthy that the petitioner reiterated this refusal at the hearing held to reevaluate his custodial status. In Superintendent v. Hill, supra, 455-57, involving an inmate’s loss of good time credits, the Supreme Court of the United States held that the requirement of “a modicum of evidence” is met if “there is any evidence in the record that could support the conclusion reached by the disciplinary board. . . . The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. . . . The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board.” See Freeman v. Rideout, 808 F.2d 949, 951-55 (2d Cir. 1986), cert. denied, 485 U.S. 982, 108 S. Ct. 1273, 99 L. Ed. 2d 484 (1988); see also Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987). Considering the evidence with a view to sustaining the findings that led to the petitioner’s transfer to confinement in a correctional institution, we conclude that the respondent has produced the “modicum of evidence” that is constitutionally required.

There is error, the judgment of the trial court is set aside and the case is remanded to that court with direction to render judgment denying the petition.

In this opinion the other justices concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The text of the letter at issue from Attorney William J. Tracy, Jr., to Commissioner of Correction Larry Meachum, dated August 22, 1988, is reprinted in its entirety.
      “I have been advised that my client, Mr. Steven Asherman, has been ordered to appear on Wednesday, August 24,1988 and Thursday, August 25,1988 from 9:00 A.M. to 5:00 P.M., before one or more state psychiatrists.
      “To the best of my knowledge, this is an unprecedented procedure for an individual on community release in good standing. It is not one of the imposed conditions of his release. Mr. Asherman has already successfully completed the mental health program developed for him by your department. I can only assume, from recent published reports, that the purpose of this ordeal is to conduct, without notice, a re-evaluation hearing.
      “Before Mr. Asherman was released, he underwent psychiatric evaluation on the order of the Deputy Commissioner of Field Services. This evaluation was considered in determining Mr. Asherman’s eligibility for release.
      “There has been [no] misconduct or even unusual behavior that would warrant ordering a re-evaluation at this late date. This unorthodox procedure is highly disruptive of Mr. Asherman’s legitimate efforts to return to a normal life. He is being forced, on short notice, to miss two days of work at a crucial time for his employer plus provide the humiliating explanation that he has suddenly been instructed to undergo such an evaluation. The Department of Corrections is putting pressure on Mr. Asherman when support and encouragement have been earned.
      “In addition, I have filed, on Mr. Asherman’s behalf, a petition under 28 USC Section 2254 for a writ of habeas corpus in the United States District Court. The petition represents a substantial amount of work in connection with Mr. Asherman’s continuing efforts to contest the substantial improprieties in the course of his trial. The petition is not related to the recent publicity; nevertheless, since we are finally at the stage of filing the petition, there are significant additional considerations related to the petition to cause me to instruct Mr. Asherman not to participate in any interrogation which is related to the crime for which he was charged. My research indicates clearly that Mr. Asherman’s right to silence and right to counsel continue in that regard even after conviction.
      “I have instructed Mr. Asherman to appear as ordered. I will appear with Mm.
      “I sincerely hope you will not misconstrue Mr. Asherman’s silence at this hearing, which will be in compliance with my instructions. As you are aware, Mr. Asherman has consistently demonstrated that he is more than willing to participate in all Department of Correction Rehabilitation Programs and cooperate with all legitimate proceedings.
      “Please advise me if I have misconstrued the upcoming hearing as part of a revocation proceeding. Mr. Asherman has done nothing to warrant such an action.
      “We earnestly request clarification as to the intentions of your department with respect to this case and the purpose of these most unusual procedures.”

       The Community Residence Violation Report, dated August 24, 1988, stated in pertinent part:
      “NATURE OF VIOLATION
      “Condition #1: By virtue of a letter received by Commissioner Meachum, signed by your lawyer, William J. Tracy, Jr., which indicated that Mr. Asher-man will not participate in any interrogation which is related to the crime for which he was charged. This is a violation of Condition #1 which states in part, ‘You are to follow the instructions of Ms supervising officer.’
      “Condition #11: Which states in part, ‘. . . that your release is not incompatible with the welfare of society. . .’. Mr. Asherman’s community release status was reviewed following the Connecticut Board of Parole’s decision to deny parole. By virtue of Mr. Asherman’s decision not to cooperate with a psychological evaluation, his parole denial, and its possible impact on him, it was determined that continued supervision in the community was incompatible with the welfare of society.”

       Disciplinary proceedings, as distinguished from classification proceedings, consider misconduct that may lead to such sanctions as loss of good time credits. Reclassification proceedings, by contrast, may be triggered by changed circumstances that do not implicate misconduct on the part of the person on home release, such as the death of supporting family members or the relocation of an employer.

       The letter from Commissioner of Correction Larry Meachum to Steven Asherman, dated September 7, 1988, states in relevant part: “Your conduct in this regard has denied me the opportunity to obtain information which is essential to my continuing authority to review your suitability for the privilege of home release. I am compelled therefore to conclude that you are no longer suitable for this status and I herewith transfer you to confinement within a correctional facility. You will be afforded a classification hearing to determine which facility will be selected.”

       For the sake of convenience, we will refer to the petitioner’s appeal as a cross appeal even though he does not claim that he is aggrieved by the judgment or decision from which the respondent has appealed. See Practice Book § 4005. The petitioner’s claims of error should have been denominated as “alternate grounds upon which the judgment may be affirmed.” See Practice Book § 4013 (a) (1) (A).

       Article fourteenth of the United States constitution provides in pertinent part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law . . . . ”
      Article first, § 8 of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in Ms behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
      The petitioner’s counsel in this case has articulated no basis for an argument that due process claims under the Connecticut constitution have substantially different meanings than under the United States constitution. See State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); but see Fasulo v. Arafeh, 173 Conn. 473, 475, 378 A.2d 553 (1977).

       The appeal in this case does not require us to rule on evidence produced at examinations and hearings subsequent to the proceedings that led to the judgment that is currently at issue.