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 petitionerrefused 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 respondent 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 improperly 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 qualitatively 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 AppellateCourt, 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 general, 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 appealrequires us to determine the appropriate test for resolving whether an

inmate’s prison classification implicates a protected liberty interest. The respondent, the Commissioner of Correction, appeals from the judgment of the Appellate

Courtreversing 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 Correction, 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 dismissed the petition on the basis that the petitionerfailed

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 judgment 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 Department 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 supervision. . . .’’ 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 confinement 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 classification, the petitioner was offered a choice. He could participate in ‘‘sex treatment’’ that was recommended by

his offender accountability plan or risk forfeiture of

supervised community release, parole and the opportunity to earn risk reduction earned credit (good time

credits). He refused to participate in treatment.

The petitioner subsequently filed this petition, claiming 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 classification had been predicated on erroneous facts, stigmatized 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 security status. He alleged a contingentrelationship between

the classification, the recommended treatment plan and

his eligibility for good time credits, parole and community 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 forfeiting 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 community 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 administrative remedy form that he had submitted to the department 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 classified as being in need of sex offender treatment because

the department assigned him a sex offender treatment

need score with a recommended sex offendertreatment

referral during his previous incarceration.’’ Id., 234. The

court concluded, therefore, that the collateral consequences 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’’ element 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 possessed a protected liberty interest, and was not afforded

the requisite process before being deprived of that liberty interest. . . . A petitioner has no right to due process . . . 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 protected liberty interest. That question implicates the subject 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 determine 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 interest. The petitioner contends that because the classifica-
tion stigmatized him and because he suffered negative

consequences, he has satisfied his burden of establishing 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 earliest 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 implicated a liberty interest. The court rejected the traditional 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 implicated. 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 revocation 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 transferto a Massachusetts prison with less favorable conditions implicated a protected liberty interest.

The court acknowledged that the transfers had a ‘‘substantial adverse impact’’ on the prisoners. Id., 224.

Whether the prisoners had suffered a grievous loss of

liberty due to the transfers, however, must be understood in the context of their status as individuals who
have been incarcerated following a conviction. Because

prisoners have already had their liberty greatly curtailed, such transfers do not constitute a grievous loss.

Id. The court further observed that the federal constitution 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 ‘‘normal 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 substantial deprivation suffered by prisoners, it reasoned, that

would risk subjecting ‘‘to judicial review a wide spectrum 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 officials 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 cabined 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 decisions. Sandin v. Connor, supra, 515 U.S. 479. For example, 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 dichotomy resulted in prisoners ‘‘comb[ing] regulations in

search of mandatory language on which to base entitlements 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 administrative 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 mandatory 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 articulated 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 conditions are imposed on an inmate that ‘‘[exceed] the sentence 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 interests 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 situations,’’ a different inquiry is appropriate to determine

whether the due process clause directly ‘‘confers a liberty 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 punishment that is ‘‘ ‘qualitatively different’ ’’ from that ‘‘characteristically suffered by a person convicted of crime,’’

the protected liberty interest arises from the due process clause directly. Sandin v. Conner, supra, 479 n.4.

In Vitek, the court held that an inmate who had challenged 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 ‘‘qualitatively different’’ from the punishments usually suffered by prisoners. Id., 493. The transfer, therefore

‘‘constituted a major change in the conditions of confinement 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 appearthat the prisoner

in Vitek challenged the determination that he was mentally 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 raising a due process claim pursuant to the stigma plus

testin Vitek also must allege the falsehood of the stigmatizing 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 classified 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 forfeiting 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 demonstrate that the classification was wrongful and stigmatized 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 wrongful 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 stigmatizing 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 enforcement officials who are then authorized to release information 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 classification 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 prisoner’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 conditions 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 satisfied 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 touchstone of the inquiry into the existence of a protected,

state-created liberty interest in avoiding restrictive conditions of confinement is not the language ofregulations

regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life.’’ (Emphasis added; internal

quotation marks omitted.) Id., 223. The extreme isolation 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 acknowledged 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 determine the baseline requires that our inquiry be a pragmatic 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 whetherthe 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 departure 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 treatment. See, e.g., Coleman v. Dretke, 395 F.3d 216, 222–23

(5th Cir. 2004) (conditioning parole on sex offender

registration and treatmentrendered facts of case ‘‘materially 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 Corrections, 205 F.3d 1237, 1239–41 (10th Cir.) (reduction of

good time credits for failure to participate in sex

offender therapy was ‘‘coercive consequence’’ establishing ‘‘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 participate 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 contrast, courts have found no protected liberty interest

where an inmate has been labeled a sex offender and

provided with a recommendation for sex offender treatment, but has been unable to demonstrate that he suffered 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 presents 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 considered the question of whether the actions of prison officials 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. Commissioner 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 Connecticut’s statutory scheme does not create a cognizable 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 stigmatized by the classification.Earlier, in Wheway v. Warden, supra, 215 Conn. 423, this court addressed the

question of whether an inmate’s classification as a maximum security prisoner solely on the basis of a parole

violation detainer implicated a protected liberty interest. Wheway was decided well before Sandin. In concluding 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 petitioner 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, community 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 protected 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 improperly 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 allegations 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]istory 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 enforcement 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 extinguished’’ 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 governmental 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 atthe 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

disordertreatment 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.