Attorney General: Daniel B. Horwitch, Deputy Director, Legal Services, Formal Opinion 2008-016, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 25, 2008

  

Daniel B. Horwitch

Deputy Director, Legal Services

State of Connecticut Judicial Branch

100 Washington Street

P.O. Box 150474

Hartford, CT  06115-0474

 

Dear Mr. Horwitch:

 

This letter is in response to your request for a formal legal opinion concerning the interpretation and application of 2008 Conn. Pub. Acts No. 08-32, “An Act Concerning Teenage Drivers.” You note that section 12 of the Act amends Conn. Gen. Stat. § 54-76l, governing the confidentiality of youthful offender records, by adding a new subsection (h) to the statute. The new subsection requires that the records of any youthful offender who has violated certain motor vehicle laws be turned over to the Department of Motor Vehicles for a determination whether the offender’s motor vehicle license should be suspended. Specifically, the new subsection states that:

The records of any youth adjudged a youthful offender for a violation of section 14-222 [reckless driving], subsection (b) or (c) of section 14-224 [leaving the scene of an accident; road racing], section 14-215 [driving without a valid license or registration] or subsection (b) of section 14-223 [failing to stop for an officer] shall be disclosed to the Department of Motor Vehicles for administrative use in determining whether suspension of such person’s motor vehicle operator’s license is warranted. The commissioner shall suspend the motor vehicle operator’s license of such youth for six months for a first offense and one year for a second offense or subsequent offense. Such records disclosed pursuant to this section shall not be further disclosed.

Public Act 08-32, § 12(h), amending Conn. Gen. Stat. § 54-76l.

            Your question concerns the relationship between this new subsection (h) and the former subsection (h), which is now labeled subsection (i). Subsection (i) states that:

The provisions of this section, as amended by public act 05-232, apply to offenses committed after January 1, 2006, and do not affect any cases pending on said date or any investigations involving offenses committed prior to said date.

Public Act 08-32, § 12(i), amending Conn. Gen. Stat. § 54-76l.

            You question whether, on or after the August 1, 2008 effective date of Public Act 08-32, the Judicial Branch will be required to disclose to the Department of Motor Vehicles previously undisclosed youthful offender adjudications for any of the offenses specified in subsection (h) of Public Act 08-32, § 12, which were committed between January 1, 2006 and August 1, 2008. In essence, you are asking whether subsection (h) must be applied retroactively to youthful offender offenses that occurred prior to the effective date of the Act.

We conclude that the legislature did not intend subsection (h) of Public Act 08-32, § 12, to apply retroactively to offenses that predated the August 1, 2008 effective date of the Act.

“Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute.” D’Eramo v. Smith, 273 Conn. 610, 620 (2005).  Two statutes assist in determining legislative intent regarding retroactivity. The first, Conn. Gen. Stat. § 1-1(u) provides that “[t]he passage or repeal of an act shall not affect any action then pending.” The second, Conn. Gen. Stat. § 55-3, directs that “[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect.” “The Connecticut Supreme Court ha[s] uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only.” Anderson Consulting, LLP v. Gavin, 255 Conn. 498, 517 (2001)(italics omitted). Only if a statute is procedural is it presumed to apply retroactively. Coley v. Camden Associates, 243 Conn. 311 (1997).

Although “retroactivity has long been disfavored,” Landgraf v. USI Film Products, 511 U.S. 244, 268 (1994), the “presumption in favor of prospective applicability . . . may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.” Anderson Consulting, LLP v. Gavin, 255 Conn. 498, 517 (2001). The court “generally look[s] to the statutory language and pertinent legislative history to ascertain whether the legislature intended that the [statute] be given retrospective effect.” Johnson v. Commissioner of Correction, 258 Conn. 804, 820 (2002). If a statute explicitly states that it is to be given retrospective effect, Bayusik v. Nationwide Mutual Insurance Co., 233 Conn. 474, 484 (1995), or makes clear that it is merely a clarification of existing law, Bhinder v. Sun Co., Inc., 263 Conn. 358, 369-371 (2003), it may be applied retroactively.

In the present case, several factors lead us to conclude that Public Act 08-32, § 12(h), amending § 54-76l(h), should be applied prospectively only. First, the language of subsection (i), which is the provision that has caused the current uncertainty, makes no mention of Public Act 08-32. To the contrary, it states that “[t]he provisions of this section [§ 54-76l], as amended by public act 05-232, apply to offenses committed after January 1, 2006, and do not affect any cases pending on said date or any investigations involving offenses committed prior to said date.” Public Act 08-32, § 12(i)(emphasis added). Given the maxim of statutory construction that the expression of one is the exclusion of the other, see Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission of Enfield, 284 Conn. 838, 850-851 (2008), it must be presumed that by including the reference to Public Act 05-232, but failing to include any reference to Public Act 08-32, the legislature did not intend subsection (i) to apply to the latter amendments.

Second, the legislative history of Public Act 08-32 makes no mention of any intent to make the Act’s provisions retroactive.

Third, it is significant that the subsection that has created the current uncertainty - - subsection (i) of Public Act 08-32, § 12 -- was enacted in 2005 not to render Conn. Gen. Stat. § 54-76l retroactive, but rather for precisely the opposite reason - - to ensure that the 2005 amendments to § 54-76l in Public Act 05-232 would be applied prospectively only. As originally codified, the subsection stated (as it does today) that: “The provisions of this section [section 54-76l], as amended by public act 05-232, apply to offenses committed after January 1, 2006, and do not affect any cases pending on said date or any investigations involving offenses committed prior to said date.” Conn. Gen. Stat. § 54-76l(h)(2005 revision, as amended by Public Act 05-232). Because the effective date of Public Act 05-232 was January 1, 2006, the result of the subsection was to make clear that the changes to § 54-76l were not to be applied retroactively. This intent was reflected in the legislative history of Public Act 05-232, in which Representative Farr emphasized that the Act’s “effective date is January [2006],” and the amendments “will only be applicable to crimes committed after January, 2006.” 48 Conn. H.R. Proc., pt. 25, 2005 Sess. 7658 (June 2, 2005)(remarks of Rep. Farr).

Given the original intent of subsection (i) to ensure that § 54-76l was construed to apply prospectively only, it is unlikely that by failing to change the language of the subsection, the legislature intended the subsection to have the opposite effect on Public Act 08-32, § 12, and require that Public Act 08-32, § 12, be applied retroactively. More likely, the legislature assumed that by not referencing Public Act 08-32 in subsection (i), the provisions of subsection (i) would not apply to Public Act 08-32. In any case, subsection (i) is far from the “clear and unequivocal expression of legislative intent” necessary to overcome the presumption against retroactivity that is compelled by the substantive changes that Public Act 08-32, §12(h), makes to Conn. Gen. Stat. § 54-76l.

For the foregoing reasons, we conclude that the amendments to Conn. Gen. Stat. § 54-76l set forth in Public Act 08-32, § 12(h), should be applied only prospectively to offenses committed after the August 1, 2008 effective date of the Act.

Very truly yours,

 

 

 

RICHARD BLUMENTHAL

ATTORNEY GENERAL

 

 

Jane R. Rosenberg

Assistant Attorney General


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