A. Gallo & Co. v. Commissioner of Environmental Protection
CourtSupreme Court of Connecticut
Date FiledAugust 20, 2013
DocketSC18764
JudgeRogers; Palmer; Zarella; Eveleigh; Vertefeuille
StatusPublished
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Full Opinion
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A. GALLO AND COMPANY ET AL. v. COMMISSIONER
OF ENVIRONMENTAL PROTECTION ET AL.
(SC 18764)
Rogers, C. J., and Palmer, Zarella, Eveleigh and Vertefeuille, Js.
Argued January 2—officially released August 20, 2013
Michael K. Skold, assistant attorney general, with
whom were Robert W. Clark, special counsel, and, on
the brief, George Jepsen, attorney general, for the appel-
lants (defendants).
James K. Robertson, Jr., with whom, on the brief,
were David S. Hardy and Sherwin M. Yoder, for the
appellees (named plaintiff et al.).
Patricia A. Millett, pro hac vice, with whom was
Garrett S. Flynn, for the appellees (plaintiff Adirondack
Beverages Corporation et al.).
R. Bradley Morris filed a brief for the New England
Legal Foundation as amicus curiae.
Opinion
ZARELLA, J. The original plaintiffs,1 twelve beer and
soft drink distributors doing business in Connecticut,
brought this action against the named defendant, the
Commissioner of Environmental Protection (commis-
sioner),2 seeking a declaratory judgment and damages
for the alleged, retroactive taking of their property
under certain provisions of Public Acts 2009, No. 09-1,
§ 15 (P.A. 09-1), in violation of the fifth and fourteenth
amendments to the United States constitution, and arti-
cle first, § 11, of the constitution of Connecticut. The
property in question consists of unclaimed beverage
container deposits (unclaimed deposits), the disposi-
tion of which was considered by the state legislature
in 2008, and again in 2009, when Connecticut was facing
a significant budget deficit. State legislation signed into
law on January 15, 2009, and made applicable for a
period of four months prior to its effective date,3 pro-
vided that all unclaimed deposits accruing during the
designated four month period, which previously had
been retained by the plaintiffs, henceforth must be paid
to the state. See P.A. 09-1, § 15, codified at General
Statutes (Supp. 2010) § 22a-245a (d). The plaintiffs do
not challenge the state’s right to the unclaimed deposits
from the effective date onward. Instead, they claim that
application of the provision to the four month period
prior to that date was an unconstitutional taking
because they had a vested property interest in the
unclaimed deposits. The commissioner responds that
the legislation did not effect an unconstitutional taking
because they did not have a vested property interest in
the unclaimed deposits. The commissioner now appeals
from the judgment of the trial court awarding damages
and attorney’s fees to the original plaintiffs and damages
to the intervening plaintiffs following the trial court’s
granting of the original plaintiffs’ motion for summary
judgment and denial of the commissioner’s motion for
summary judgment. We reverse the judgment of the
trial court.
The parties stipulated to the following facts,4 which
the trial court set forth in its memorandum of decision.
‘‘[The] [c]ommissioner . . . and the [Department of
Environmental Protection (DEP)] are charged with
administering and enforcing . . . General Statutes
§ 22a-243 et seq., as amended by [Public Acts, Spec.
Sess., November, 2008, No. 08-1 (Spec. Sess. P.A. 08-
1), and P.A. 09-1], and [the commissioner] is responsible
for depositing the payment appropriated thereby in the
state’s general fund.
***
‘‘[Public Acts 1978, No. 78-16], effective January 1,
1980, codified [at] . . . § 22a-243 et seq., is commonly
known as the ‘bottle bill.’ In an effort to reduce litter and
solid waste levels, the bottle bill established a system of
beverage container recycling to be administered, in
part, by Connecticut’s beer and soft drink distributors
such as the plaintiffs. The bottle bill required the plain-
tiffs to pay a five cent refund value upon the return of
empty beer or soft drink containers of the kind, size
and brand sold by the distributor.
‘‘Under the provisions of the bottle bill and Connecti-
cut’s long-standing and highly regulated three tier alco-
holic beverage distribution system (distributor—
retailer—consumer), the basic mechanics of the return
and refund process function as follows:
‘‘a. Beverage distributors such as the plaintiff[s] ‘initi-
ate,’ or charge and collect, a five cent refund value on
each container sold to a retailer;
‘‘b. Retailers pay the five cent refund value on each
container purchased from the distributor, and, in turn,
charge and collect a five cent refund value from the
end-purchaser/consumer of the beverage;
‘‘c. If a consumer returns the empty container to
the retailer (or a redemption center), the retailer (or
redemption center) is required to pay the consumer a
refund of five cents; and
‘‘d. The retailer (or redemption center), in turn, will
return the empty container to the distributor of the
product, who must reimburse the retailer (or redemp-
tion center) five cents.
‘‘The plaintiffs also incur costs and expense adminis-
tering portions of the bottle bill, including:
‘‘a. Paying a one and [one]-half cent statutory han-
dling fee to the retailer (or redemption center) for each
empty beer container returned. In the case of soft
drinks, the statutory handling fee for the return of empty
containers is two cents;
‘‘b. Transporting empty containers from the retailer
back to the distributor;
‘‘c. Providing dedicated space for processing returns;
‘‘d. Making arrangements for the processing and
recycling of the empty containers; and
‘‘e. Incurring the costs of labor, overhead and insur-
ance necessary to perform these functions and to com-
ply with the mandates of the bottle bill.
‘‘After paying the refund value and the handling fee,
the distributors own the returned containers, which are
recyclable materials, and may dispose of them as they
choose. Distributors may sell returns to third parties.
The costs of performing the tasks described in the pre-
ceding paragraph are born[e] by . . . Connecticut bev-
erage distributors like the plaintiffs.
‘‘Under the bottle bill, distributors do not hold refund
values in a manner that makes them identifiable to a
specific container or a specific consumer. The plaintiffs
have a statutory obligation to pay retailers five cents
when presented with an empty container of the kind,
size and brand sold by the plaintiffs, regardless of when
the container was actually sold to a retailer or con-
sumer. The bottle bill does not refer to the amounts
paid by a distributor to retailers upon the return of an
empty container of the kind, size and brand sold by the
distributor as a ‘deposit.’ Instead, the bottle bill defines
such payments as ‘refund values.’
‘‘On November 25, 2008, the legislature passed [the
2008 act], entitled ‘An Act Concerning Deficit Mitiga-
tion.’ [The 2008 act] . . . required each of the plaintiff
distributors to ‘open a special interest-bearing account
at a Connecticut branch of a financial institution, as
defined in [§] 45a-557a of the General Statutes, to the
credit of the deposit initiator.’ . . . [The act] further
provided that ‘[e]ach deposit initiator shall deposit in
such account an amount equal to the refund values
established pursuant to subsection (a) of [§] 22a-244 of
the General Statutes, for each beverage container sold
by such deposit initiator.’ . . . ‘[F]or any beverage con-
tainer sold during the period from December 1, 2008,
to December 31, 2008, inclusive, such deposit shall be
made not later than January 5, 2009.’ . . . All interest,
dividends and returns earned on the special account
were required to be paid into such account, and such
moneys were required to ‘be kept separate and apart
from all other moneys in the possession [of] the deposit
initiator.’ . . . Lastly, [the 2008 act] provided that
‘[a]ny reimbursement of the refund value for a
redeemed beverage container shall be paid [from] the
deposit initiator’s special account.’ . . .
‘‘One of the purposes of [the 2008 act] was to provide
the state and [the] DEP with information concerning
the container return rate and the amount of money
representing the difference between refund values
deposited and paid. The DEP published a document on
its website entitled ‘Bottle Bill FAQ.’ On January 5, 2009,
[the] DEP edited the webpage by changing the name
of the person at [the] DEP to whom public inquiries
could be made about the subject matter of the webpage.
The updated information provided in pertinent part:
‘‘ ‘Who gets the money from bottles that are not
returned?
‘‘ ‘Called unclaimed deposits, these moneys accumu-
late from containers that are either thrown away or
recycled through curbside programs. These fund[s] are
kept by the distributors.’
‘‘Beginning on December 1, 2008, the plaintiffs began
opening and funding accounts in accordance with the
terms of [the 2008 act]. On or before March 15, 2009,
the plaintiffs were required to submit reports on their
account activity for the period December 1, 2008,
through February 28, 2009, to the DEP in accordance
with [the 2008 act].
‘‘On January 15, 2009, the legislature passed, and the
governor signed [the 2009 act], entitled ‘An Act Con-
cerning Deficit Mitigation for the Fiscal Year Ending
June 30, 2009.’ . . . [Section 15 of the 2009 act] . . .
[was] ‘[e]ffective April 1, 2009, and applicable to periods
commencing on or after December 1, 2008.’ [The act]
require[d] the plaintiffs to pay to the DEP (for deposit
in the state’s general fund), not later than April 30,
2009, the balances in the plaintiffs’ special accounts
that [were] attributable to [the] period December 1,
2008, through March 31, 2009, and further require[d]
additional quarterly payments from the special
accounts on an ongoing basis.
‘‘In accordance with [the 2009 act], [twenty-four] dis-
tributors submitted financial reports to [the] DEP for
the period December 1, 2008, to February 28, 2009. Of
the [twenty-four] companies that submitted financial
reports for the period December 1, 2008, to February
28, 2009, [thirteen] provided information about the stat-
utory ‘handling fees’ they incurred for that period.
‘‘The bottle bill does not require the plaintiffs to
charge retailers a five cent refund value at the time of
sale and neither expressly prohibits nor permits the
plaintiffs to specifically itemize the five cent refund
value on their invoices, and some distributors, including
some of the plaintiffs, choose to incorporate this
amount into the purchase price of beverages they sell
to retailers without itemizing it. The bottle bill neither
expressly prohibits nor permits the distributors from
including the five cent refund value in the general reve-
nues that they calculate on their financial statements.
The plaintiffs have included said refund value amounts
in their general revenues for accounting purposes.
‘‘The bottle bill neither expressly prohibits nor per-
mits distributors from including the refund values they
collect as revenues for purposes of calculating their
income taxes. Nor does the bottle bill expressly prohibit
or permit distributors [to deduct] redemption amounts
they pay as expenses when calculating their income
taxes. Under [the 2008 act], sums deposited in the spe-
cial accounts are determined by a formula, i.e., number
of containers sold [multiplied by five] cents.
‘‘Through March 31, 2009, the plaintiffs maintained
in their names special, interest-bearing accounts at Con-
necticut branches of financial institutions, as defined in
[§] 45a-577, to the credit of the plaintiffs, and maintained
transactional authority over the accounts. Pursuant to
. . . [to the 2008 act], moneys deposited into the special
accounts ‘shall be kept separate and apart from all other
moneys in the possession of the deposit initiator’ and
‘[a]ny reimbursement of the refund value for a
redeemed beverage container shall be paid from the
deposit initiator’s special account.’ The bottle bill never
dictated to the plaintiffs what amounts they may charge
for their products.’’ (Citations omitted; footnote
omitted.)
On April 16, 2009, the original plaintiffs brought an
action in the trial court for declaratory and injunctive
relief, seeking to prohibit the commissioner from
enforcing the ‘‘retroactive’’ taking of the unclaimed
deposits attributable to the period from December 1,
2008, through March 31, 2009. Following the trial court’s
denial on May 5, 2009, of their motion for a temporary
injunction, the original plaintiffs paid the unclaimed
deposits, with accrued interest, to the state. The total
amount of the payments was $2,058,651.67.
Thereafter, on May 21, 2009, the original plaintiffs
filed a motion for summary judgment in which they
sought a declaration that the retroactive payment
requirement of the 2009 act, and the commissioner’s
enforcement thereof, was an unconstitutional taking of
their property for which the state was required to pay
just compensation. They also sought a return of the
amounts they had paid to the state. On July 17, 2009,
the commissioner filed a motion for summary judgment,
arguing that the plaintiffs could not show that they had
a vested property interest in the unclaimed deposits.
In a memorandum of decision dated April 23, 2010,
the court found in favor of the plaintiffs. The court
concluded that the unclaimed deposits were the prop-
erty of the plaintiffs, that their property interest in the
unclaimed deposits was not affected by the passage of
the 2008 act, that the 2009 act extinguished the plaintiffs’
right to the unclaimed deposits accruing after April 1,
2009, the effective date of § 15 of the 2009 act, and
that the 2009 act’s ‘‘retroactive’’ provision requiring the
plaintiffs to pay to the state any unclaimed deposits
and accrued interest from December 1, 2008, through
March 31, 2009, was a taking of their property without
just compensation in violation of the federal and
state constitutions.
The trial court subsequently granted a motion to inter-
vene filed by six additional beverage distributors doing
business in Connecticut.5 After a hearing in damages,
the court awarded the plaintiffs compensatory damages
in the amount of $5,675,310.44, plus interest. It also
awarded attorney’s fees to the original plaintiffs in the
amount of $120,429.37. The commissioner appealed
from the trial court’s judgment to the Appellate Court,
and the original plaintiffs cross appealed. They later
withdrew their cross appeal, and the commissioner’s
appeal was transferred to this court pursuant to General
Statutes § 51-199 (b) and Practice Book § 65-4. On
appeal, the commissioner contends that the trial court
improperly determined that the retroactive provision
of the 2009 act resulted in an unconstitutional taking
of the plaintiffs’ property.
It is well established that ‘‘[s]ummary judgment shall
be rendered forthwith if the pleadings, affidavits and
other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. . . . The
scope of our appellate review depends upon the proper
characterization of the rulings made by the trial court.
. . . When . . . the trial court draws conclusions of
law, our review is plenary and we must decide whether
its conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Ugrin v. Cheshire, 307 Conn.
364, 389, 54 A.3d 532 (2012). We also exercise plenary
review over claims that require the interpretation of a
statute, as in the present case. See, e.g., Republican
Party of Connecticut v. Merrill, 307 Conn. 470, 488, 55
A.3d 251 (2012).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Footnote omitted; internal quotation marks omitted.)
Id., 488–49.
With respect to a statutory challenge on constitu-
tional grounds, ‘‘[a] validly enacted statute carries with
it a strong presumption of constitutionality, [and] those
who challenge its constitutionality must sustain the
heavy burden of proving its unconstitutionality beyond
a reasonable doubt. . . . The court will indulge in
every presumption in favor of the statute’s constitution-
ality . . . . Therefore, [w]hen a question of constitu-
tionality is raised, courts must approach it with caution,
examine it with care, and sustain the legislation unless
its invalidity is clear.’’ (Internal quotation marks omit-
ted.) Pham v. Starkowski, 300 Conn. 412, 429–30, 16
A.3d 635 (2011). In other words, ‘‘we will search for an
effective and constitutional construction that reason-
ably accords with the legislature’s underlying intent.’’
(Internal quotation marks omitted.) Bozrah v. Chmury-
nski, 303 Conn. 676, 685 n.5, 36 A.3d 210 (2012).
The constitutional provisions at issue in the present
case are the fifth amendment to the United States con-
stitution and article first, § 11, of the Connecticut consti-
tution. The fifth amendment to the United States
constitution provides in relevant part: ‘‘[P]rivate prop-
erty [shall not] be taken for public use, without just
compensation.’’6 Article first, § 11, of the constitution
of Connecticut provides: ‘‘The property of no person
shall be taken for public use, without just compensa-
tion therefor.’’
The commissioner claims that the takings clause does
not apply in the present case because the plaintiffs did
not have a vested property interest in the unclaimed
deposits attributable to the period from December 1,
2008, through March 31, 2009. The commissioner con-
tends that, as a result of the 2008 act, the plaintiffs were
required to deposit the refund values, together with
all interest, dividends and returns earned thereon, in
special, segregated bank accounts beginning on Decem-
ber 1, 2008, and that nothing in the 2008 act permitted
the plaintiffs to withdraw the funds that were deposited
in those accounts during, or at the end of, the reporting
period for any purpose other than reimbursing retailers
for the redeemed containers. Thus, the plaintiffs had
no right to use or enjoy the funds deposited in the
special accounts at any time in the future. According to
the commissioner, the most the plaintiffs could possibly
claim was a future, contingent interest in potential sur-
pluses in the accounts, which, in turn, depended on
the enactment of further legislation permitting them to
withdraw the surplus funds and on their availability at
the close of the reporting period.
The plaintiffs respond that, although refund values
were separately itemized at purchase, ‘‘all revenues gen-
erated from the sale of beverages [were] the property
of the plaintiffs, subject to the plaintiffs’ statutory obli-
gation to pay refund values when presented with the
empty containers.’’ They further argue that the regula-
tory scheme has never required distributors and retail-
ers to charge and collect deposits identifiable to a
specific container or to a specific consumer and has
never required distributors to charge deposits and hold
them in trust for consumers, subject to redemption.
Rather, for more than thirty years, distributors ‘‘comin-
gled ‘refund values’ with their operating funds and
treated container ‘deposits’ as income and container
‘refunds’ as expenses for both accounting and tax pur-
poses.’’ The plaintiffs add that their new obligations
under the 2008 act to deposit a specified portion of
their revenue into the special accounts did not abrogate
their property rights in that revenue because they were
permitted to use the funds in the special accounts to
pay the operating expenses associated with refunding
the deposits. They also argue that they were responsible
for the payment of taxes on the revenue deposited in
the special accounts and accrued interest,7 and that
there was no legislative direction concerning disposi-
tion of the unclaimed deposits. Thus, the refund values
were merely a component of the purchase price subject
to the distributors’ statutory obligation to reimburse
the retailers when the empty containers were returned.
We agree with the commissioner.
We begin by recognizing that ‘‘[m]oney is certainly
property . . . .’’ Pirie v. Chicago Title & Trust Co., 182
U.S. 438, 443, 21 S. Ct. 906, 45 L. Ed. 1171 (1901). In
order to state a claim under the takings clause, however,
a plaintiff first must establish that he or she possesses
a constitutionally protected interest in the disputed
property. See, e.g., Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1000–1001, 104 S. Ct. 2862, 81 L. Ed. 2d 815
(1984); see also 184 Windsor Avenue, LLC v. State, 274
Conn. 302, 319, 875 A.2d 498 (2005) (‘‘[i]t is axiomatic
that government action cannot constitute a taking when
the aggrieved party does not have a property right in
the affected property’’). Moreover, a party claiming a
protected property right must have a ‘‘clear entitlement’’
to the property. (Internal quotation marks omitted.)
Carr v. Bridgewater, 224 Conn. 44, 51, 616 A.2d 257
(1992). ‘‘Because the [c]onstitution protects rather than
creates property interests, the existence of a property
interest is determined by reference to existing rules or
understandings that stem from an independent source
such as state law.’’ (Internal quotation marks omitted.)
Phillips v. Washington Legal Foundation, 524 U.S. 156,
164, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998); see also
Board of Regents of State Colleges v. Roth, 408 U.S. 564,
577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) (‘‘Property
interests, of course, are not created by the [c]onstitu-
tion. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem
from an independent source such as state law—rules
or understandings that secure certain benefits and that
support claims of entitlement to those benefits.’’); New
England Estates, LLC v. Branford, 294 Conn. 817, 834–
35, 988 A.2d 229 (2010) (‘‘we look to the laws of our
state to determine whether [the alleged] right . . . was
a protected property interest under the takings clause’’).
As a consequence, ‘‘[w]hether one’s interest or entitle-
ment rises to the level of a protected property right
depends upon the extent to which one has been made
secure by [s]tate or [f]ederal law in its enjoyment.’’
(Internal quotation marks omitted.) 184 Windsor Ave-
nue, LLC v. State, supra, 319. For a property right to
be considered vested, in contrast to one that is expec-
tant or contingent, it must function as a present interest.
See, e.g., Bryant v. Hackett, 118 Conn. 233, 241, 171
A.2d 664 (1934).
We first consider whether the plaintiffs have estab-
lished that they have a protected property interest in
the refund values deposited in the special accounts
following passage of the 2008 act, which made signifi-
cant changes in the regulatory scheme beginning on
December 1, 2008. The plaintiffs concede that the bottle
bill law, in its original form and as amended by the
2008 act, did not grant them a property interest in the
unclaimed deposits. We agree. Accordingly, insofar as
‘‘the existence of a property interest is determined by
reference to existing rules or understandings that stem
from an independent source such as state law’’; (inter-
nal quotation marks omitted) Phillips v. Washington
Legal Foundation, supra, 524 U.S. 164; it is undisputed
that none of the provisions in the regulatory scheme
expressly supports the plaintiffs’ assertion that they
have a property interest in the unclaimed deposits. We
thus consider certain provisions of the regulatory
scheme pertaining to the refund values, the amend-
ments to the regulatory scheme enacted by the legisla-
ture in 2008, and the legislative history of the 2008 and
2009 acts to determine whether they provide implicit
support for the plaintiffs’ claim that the refund values
are nothing more than a component of the purchase
price in which they have a vested property interest.
With respect to the provisions concerning refund val-
ues, § 22a-244 provides in relevant part: ‘‘(a) (1) Every
beverage container containing a carbonated beverage
sold or offered for sale in this state, [with certain excep-
tions], shall have a refund value. Such refund value
shall not be less than five cents and shall be a uniform
amount throughout the distribution process in this
state. (2) Every beverage container containing a noncar-
bonated beverage sold or offered for sale in this state
shall have a refund value, [with certain exceptions]
. . . . Such refund value shall not be less than five
cents and shall be a uniform amount throughout the
distribution process in this state. . . .’’ Section 22a-244
(b) further provides in relevant part: ‘‘Every beverage
container sold or offered for sale in this state, that has
a refund value . . . shall clearly indicate by embossing
or by a stamp or by a label or other method securely
affixed to the beverage container (1) either the refund
value of the container or the words ‘return for deposit’
or ‘return for refund’ or other words as approved by
the [state] . . . .’’ There is nothing in these provisions
suggesting that the distributors have a property interest
in the refund values attached to the beverage containers
covered by the regulatory scheme. Rather, use of the
terms ‘‘refund,’’ ‘‘return for deposit,’’ and ‘‘return for
refund’’ in the foregoing provisions indicates that the
refund values are to be paid to consumers upon return
of the empty containers.
With respect to the 2008 act, regardless of the status
of the refund values before passage of the act, which
we are not asked to determine, it is undisputed that
the act established strict controls over management of
the funds charged and collected by the distributors
pursuant to the regulatory scheme. Although the act,
which was signed into law by the governor on Novem-
ber 25, 2008, did not contain a provision directing the
state to collect the unclaimed deposits, it contained a
provision requiring each ‘‘deposit initiator,’’ which it
defined as ‘‘the first distributor to collect the deposit
on a beverage container sold to any person within this
state’’;8 Spec. Sess. P.A. 08-1, § 10; to (1) ‘‘open a special
interest-bearing account at a Connecticut branch of a
financial institution . . . to the credit of the deposit
initiator,’’ (2) ‘‘deposit into such account an amount
equal to the refund value established pursuant to sub-
section (a) of [§] 22a-244 . . . for each beverage con-
tainer sold by such deposit initiator,’’ (3) pay directly
into such account ‘‘[a]ll interest, dividends and returns
earned on the special account,’’ (4) keep moneys in
the special account ‘‘separate and apart from all other
moneys in the possession of the deposit initiator,’’ and
(5) pay ‘‘[a]ny reimbursement of the refund value for
a redeemed beverage container’’ as well as ‘‘all service
charges and overdraft charges on the account . . . .’’
Spec. Sess. P.A. 08-1, § 11, codified at General Statutes
(Rev. to 2009) § 22a-245 (a) through (c). In addition,
the 2008 act required that any reimbursement by the
deposit initiator must be paid to the retailer in the
manner prescribed by the policies and procedures
adopted by the commissioner in establishing an
accounting system for that purpose, and that each
deposit initiator must submit detailed reports to the
commissioner on a quarterly basis describing activity
in the special account during the reporting period,
including the balance in the account at the beginning
and the close of the quarter for which the report was
prepared.9 Spec. Sess. P.A. 08-1, codified at General
Statutes (Rev. to 2009) § 22a-245a (b) and (c). The 2008
act further provided that the state treasurer could exam-
ine the accounts and records maintained by the deposit
initiator pursuant to the act at any time, and that the
attorney general could institute an action or proceeding
to enforce any requirement of the act or corresponding
regulation adopted to implement its provisions. Spec.
Sess. P.A. 08-1, codified at General Statutes (Rev. to
2009) § 22a-245a (d) and (e). As previously stated, the
2008 act contained no provision allowing distributors
to withdraw funds from the special accounts for any
purpose other than to reimburse retailers for the
redeemed beverage containers in an amount equal to
the refund value and to pay service and overdraft
charges on the special accounts. Accordingly, there is
no suggestion in the 2008 act that the funds placed in
the special accounts were merely a component of the
purchase price in which the distributors had a vested
property interest. The 2008 act specifically refers to the
funds as ‘‘deposit[s]’’ collected on the beverage contain-
ers, which, in the absence of a provision pertaining to
the disposition of the unclaimed deposits at the end
of a reporting period, remained available to reimburse
retailers should the empty containers be returned. See
Bryant v. Hackett, supra, 118 Conn. 241 (property inter-
est is vested interest if it functions as present interest).
Moreover, insofar as the statutory scheme may be
deemed ambiguous because of its silence on the ques-
tion of ownership, there is no implied support in the
legislative history of the 2008 and 2009 acts for the
plaintiffs’ claim that they had a vested property interest
in the unclaimed deposits. Instead, there is support for
the opposite conclusion. The legislature enacted the
bottle bill amendments in response to a plan put for-
ward by Governor M. Jodi Rell on October 21, 2008.
See 51 H.R. Proc., Pt. 23, November 24, 2008 Spec. Sess.,
pp. 7411–12, remarks of Representative Denise Merrill;
M. Rell, Deficit Mitigation Plan for Fiscal Year 2008–
2009 (October 21, 2008) pp. 2–16; see also House Bill
No. 7601, November 24, 2008 Spec. Sess. In her plan,
Governor Rell proposed modifications and revenue
adjustments to the state budget for the fiscal year 2008–
2009 in order to address the anticipated general fund
budget deficit for that year. See M. Rell, supra, pp. 7–16.
One of the revenue initiatives in Governor Rell’s plan
that required legislative approval was the collection of
unclaimed deposits beginning on December 1, 2008,
which were expected to yield $13.8 million in fiscal year
2008–2009 and $24.4 million in fiscal year 2009–2010. Id.,
p. 7; see also 51 H.R. Proc., supra, pp. 7412, 7417,
remarks of Representatives Merrill and Cameron C. Sta-
ples. As Representative Staples explained during a spe-
cial session of the General Assembly that was convened
on November 24, 2008, to consider Governor Rell’s plan,
one of the difficulties in determining whether the
unclaimed deposits should be collected by the state
was that there was no way of measuring how much
revenue the unclaimed deposits would yield. 51 H.R.
Proc., supra, p. 7417. Representative Staples observed
that estimates prepared by the Office of Fiscal Analysis
were merely guesses based on out-of-state receipts,
there having been no registered records in Connecticut
of the uncollected deposits. Id. Accordingly, the 2008
act established a reporting system to obtain such infor-
mation, which would be available to the legislature by
March 15, 2009, in time to evaluate for the 2009 legisla-
tive session how much revenue was being collected by
the distributors and ‘‘whether or not [the state] ought
to recapture some or all of the revenue on an ongoing
basis.’’ Id., pp. 7417–18, remarks of Representative
Staples.
Although the legislature did not enact a provision in
2008 allowing the state to collect the unclaimed depos-
its, the legislative history of the 2008 act strongly sup-
ports the view that the legislature did not consider such
deposits to be the property of the distributors and thus
unavailable for collection by the state. Various members
of the Senate repeatedly referred to the unclaimed
deposits as ‘‘escheats.’’ 51 S. Proc., Pt. 20, November
24, 2008 Spec. Sess., pp. 6214, 6218, 6221–22, 6228, 6235.
The term ‘‘escheat’’ is defined as ‘‘the preferable right
of the state to an estate left vacant, and without there
being any one in existence able to make claim thereto.’’
Black’s Law Dictionary (6th Ed. 1990); see also The
American Heritage Dictionary of the English Language
(5th Ed. 2011) (defining ‘‘escheat’’ as ‘‘[r]eversion of
property to the state in the absence of legal heirs or
claimants’’). The term thus describes property to which
no other person or entity has any legal claim. See, e.g.,
Pavlick v. Meriden Trust & Safe Deposit Co., 141 Conn.
471, 482, 107 A.2d 262 (1954) (‘‘[i]t is fundamental that
escheat to the state operates only when there is no
person who can take title’’). Although we are not
required to decide whether the unclaimed deposits are
escheats, it is nonetheless clear that the legislature, by
characterizing such deposits as escheats, viewed them
as property abandoned by the unidentified consumers,
or, at the very least, as property that did not belong to
the distributors. Indeed, the concept of escheats, which
requires that no claim has been made to the property
in question, could not have been intended to describe
the unclaimed deposits as property abandoned by the
distributors because the distributors who placed the
funds in the special accounts asserted their right to the
unclaimed deposits and were therefore identifiable. The
legislature thus put the public on notice that it did not
recognize a property interest in the distributors to the
unclaimed deposits, that the state most likely would
collect such deposits in the very near future, and that
the only reason it was not ready to do so at that time
was because it did not know exactly how much revenue
the unclaimed deposits would generate. This under-
standing was expressed again when the legislature
reconsidered disposition of the unclaimed deposits sev-
eral weeks later in the legislative session that com-
menced in January, 2009.
Having failed to close the budget gap in the November
24, 2008 special session and feeling the weight of the
continuing budget crisis, the legislature revisited the
issue of whether the state should collect the unclaimed
deposits on January 14, 2009, and passed a bill on that
date10 requiring distributors to pay to the state the out-
standing balance in the special accounts attributable
to the period from December 1, 2008, to March 31, 2009,
and thereafter. See House Bill No. 5095, 2009 Sess. The
effective date of § 15 of the 2009 act was April 1, 2009.
The provision was identical to a proposed amendment
to the 2008 act that had been rejected by the Senate;
see House Bill No. 7601, Senate Amendment A, Novem-
ber 24, 2008 Spec. Sess.; 51 S. Proc., supra, pp. 6215–39;
and members of the legislature continued to refer to
the unclaimed deposits as escheats. 52 H.R. Proc., Pt.
2, 2009 Sess., p. 322, remarks of Representative Staples
(referring specifically to ‘‘the bottle deposit amounts’’
as ‘‘escheats’’); see also 52 S. Proc., Pt. 2, 2009 Sess.,
p. 426; 52 H.R. Proc., supra, pp. 320–21. Similarly, in
discussing whether the state should collect all or only
a part of the unclaimed deposits, Representative Staples
stated that it was the legislature’s intent to make ‘‘sure
that we’re keeping whatever revenue is rightfully ours
and paying the actual costs of the entities involved in
implementing the recycling bill.’’ 52 H.R. Proc., supra, p.
321. Accordingly, there is no indication in the legislative
history that the distributors previously had a property
interest in the unclaimed deposits.
The plaintiffs argue that information in the fact sheet
published on the DEP website after passage of the 2008
act,11 which noted that the unclaimed deposits ‘‘are kept
by the distributors,’’ is evidence that they had a property
interest in the deposits. We disagree. The fact sheet did
not refer to the unclaimed deposits as the property of
the distributors, nor did its use of the word ‘‘kept’’
suggest that they were the property of the distributors.
The word ‘‘keep’’ means ‘‘[t]o have or retain in one’s
power or possession; not to lose or part with; to pre-
serve or retain’’; Black’s Law Dictionary, supra; but
possession in that sense, without more, is not equivalent
to ownership of, or to having legal or rightful title to,
the unclaimed deposits. Accordingly, the fact sheet
sheds no light on whether the plaintiffs had a property
interest in the unclaimed deposits following passage of
the 2008 act.
The plaintiffs further argue that it is uncontested that
they had a vested property interest in the unclaimed
deposits before passage of the 2008 act and that the
act did nothing to divest them of that revenue. We
disagree. The commissioner’s decision not to address
the status of the funds before passage of the act does
not mean that the issue would have been uncontested
if the commissioner had addressed it. Moreover, the
commissioner did not need to discuss that issue
because it had nothing to do with the issue in dispute.
The issue before this court is whether the state’s collec-
tion of the unclaimed deposits accruing during the four
month period prior to the effective date of the 2009 act
resulted in an unconstitutional taking of the plaintiffs’
property, which does not require consideration of
whether the unclaimed deposits were the plaintiffs’
property prior to passage of the 2008 act in November,
2008. Furthermore, even if the plaintiffs arguably had
a property interest in the unclaimed depo