Preserving the Past, Informing the Future
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Today we conclude a memorable chapter in the history of the Connecticut Supreme Court. Nearly twelve years ago, Ellen Ash Peters took the oath of office and became the court's thirty-third Chief Justice, as well as the first and only woman ever to preside over our highest court. Barring unforeseen circumstances, today is the last day that she will preside as Chief Justice at oral argument, and it is with the deepest admiration, respect and gratitude for her achievements that we honor her on this occasion.
For those of us who have had the pleasure of serving under her leadership, Ellen's attributes are well known. Scholarly, precise, and purposeful are all terms that immediately come to mind. At the same time, her level of caring and concern for those who seek justice before the state's highest court and its trial courts never waivers. Each case is studied, researched and ultimately decided in a manner that is truly reflective of her consuming passion to secure justice for all.
Her vision has always been of a court system that is truly fair and inclusive. Her program initiatives for the judicial branch, as well as her carefully constructed and precise opinions, have been a reflection of that vision. Chief Justice Peters' commitment to excellence and her willingness to find new and better ways to approach problems have resulted in hundreds of well crafted opinions, as well as branchwide innovations too numerous to list in their entirety. The specter of a bench without the leadership of Chief Justice Peters fills even the stoutest heart, particularly that of the speaker, with a certain amount of trepidation. Some aspects of her leadership, it seems, will be difficult - if not impossible - to imitate. The standard of excellence she has set, however, is one that myself and the associate justices will endeavor to sustain.
It goes without saying that Ellen is held in the highest esteem by her colleagues on the bench, legal scholars and government leaders. One of the more recent testaments to Chief Justice Peters' intellectual and judicial prowess came in the form of her 1994 election as president of the Conference of Chief Justices and chairperson of the board of directors of the National Center for the State Courts. Her extraordinary demands upon herself - a tireless, unyielding dedication to excellence - brought about that national prominence. Those same standards are reflected in her opinions, and her opinions have set standards not only for this court but for courts nationwide. It is not easy to single out particular cases from the more than 600 opinions she has written, but some brief highlights may illustrate the depth of her scholarship and her precise application of the law.
In Sheets v. Teddy's Frosted Foods, Inc., one of her early opinions as an associate justice, she provided some foreshadowing for the legal precision and underlying sense of fairness that would characterize her opinions during her tenure on the court.. The plaintiff, Emard Sheets, had been hired for an indefinite term as the quality control director and operations manager for the defendant, Teddy's Frosted Foods, Inc. After working successfully in those capacities for approximately three and one-half years, Mr. Sheets was terminated for questioning the quality control practices of his employer, and for informing his superiors that such practices might constitute a violation of the Connecticut Food, Drug and Cosmetic Act, a violation that could have subjected Mr. Sheets personally to criminal prosecution. Although the opinion never answered the more serious questions of what are "frosted foods" - or if there really is a "Teddy" - Justice Peters did provide judicial protection to employees who are terminated for reasons that violate a clear public policy, while also recognizing the legal and practical problem of opening the courthouse doors to those employees-at-will who are terminated for appropriate reasons.
It also did not take Justice Peters long to demonstrate, as a member of this court, the expertise that she had imparted to Yale University Law School students for so many years in the arcane, shadowy realm of the Uniform Commercial Code. In the 1980 case of Hamm v. Taylor, Justice Peters wrote an opinion concluding that a trial court must allow a mortgagee the opportunity to make a factual showing that a seemingly inequitable term in a mortgage was in fact reasonable under the circumstances of the commercial transaction at issue, before declaring that term invalid on grounds of unconscionability. Justice Peters there demonstrated an ability to incorporate her practical knowledge of the inner workings of commercial lending with her knowledge of the seemingly hieroglyphic terms of the Uniform Commercial Code. The Hamm opinion is also a prime example of her ability to distill complex legal constructs into a workable form for the practicing attorneys of this state and, more importantly, for her colleagues on this court. She is, in fact, the one person I know who thoroughly understands the Uniform Commercial Code, and can wax enthusiastic when discussing it. There is, incidentally, a rumor circulating that a reason for Ellen's retirement is to allow her to devote some time to an adaptation of the Uniform Commercial Code to a full length adventure movie starring Clint Eastwood. The memorable line from the film is expected to be Clint Eastwood saying "Go ahead - make me pay!"
In 1989, when faced with the difficult task of crafting this court's opinion in McConnell v. Beverly Enterprises, Inc., an emotionally charged case involving the right of a family to remove a loved one in a terminal coma from life support in accordance with the patient's expressed wishes, Chief Justice Peters again demonstrated why she is recognized as one of our nation's preeminent jurists. Her opinion deftly wove a reasoned course through a difficult maze of complicated case law and heart-wrenching facts to arrive at a compassionate result. After analyzing in careful detail the conflicting factual claims of the parties, the common-law right to self-determination, the constitutional right to privacy and the text of Connecticut's Removal of Life Support Systems Act, Chief Justice Peters concluded that, under Connecticut law, the patient had a statutory right to die. Although there was a sharp division of public opinion on the right to die issue at the time of McConnell, as there is today, not even the staunchest opponent of the decision would argue that the opinion was anything but intellectually and analytically sound.
State constitutional law is also an area in which the Chief Justice has written numerous opinions and done considerable independent research. In addition to publishing several articles on the appropriate role of state constitutions, including an often cited 1986 Michigan Law Review article entitled, "State Constitutional Law: Federalism in the Common Law Tradition," Chief Justice Peters has authored several of this court's most important state constitutional decisions. One example is State v. Joyner, a 1993 case in which the court was faced with a criminal defendant's claim that a statute placing the burden of proving mental disease or defect on a criminal defendant was a violation of the due process clauses of our state constitution. After an exhaustive review of resources and case law from this and other jurisdictions and after weighing the state's interests against those of the criminal defendant, the Chief Justice concluded that our state constitution permits the legislature to determine that a criminal defendant, rather than the state, appropriately bears the burden of proving insanity. In Joyner, as in each of her published opinions, the Chief Justice has demonstrated a remarkable ability to confront and resolve the most complex questions with seeming ease. We are fortunate that Chief Justice Peters will remain with us as a Senior Justice so that we may continue to benefit from her probing intellect.
Presiding over the state's highest court is only part of the Chief Justice's job. The position also carries with it the responsibility for administering a statewide system of courts and support programs to effectively and equitably ensure the rights of all of Connecticut's citizens. To say that Chief Justice Peters has been the driving force for some of the Connecticut judicial branch's most significant innovations during the past twelve years would be to understate the scope of her achievements. It is at the risk of doing so that I summarize some of the many programs and changes she has implemented in her role as the "buck stops here" administrator for the Connecticut courts. Working with Chief Court Administrator Judge Aaron Ment, she has transformed the judicial branch into a dynamic and responsive entity capable of meeting the needs of the state's citizens as we enter the twenty-first century.
The provision of a justice system that is blind to prejudices and free from bias has been a priority for Chief Justice Peters. She has spoken out against bias in any form and has made known her view that bias has no place whatsoever in the courts. In her words, "the very perception of bias as it exists in Connecticut and in other states corrodes the foundations of justice." In keeping with that commitment, she has initiated a painstaking inquiry into the existence of possible bias in the courts and a search for measures to eradicate it if it exists. In April, the Task Force on Minority Fairness presented its findings and recommendations to her. The task force found that some minorities perceive the courts to be biased, in spite of the many strides the judicial branch has made to overcome discrimination. She accepted the findings in her characteristic style - with a plan of action. A committee is already being formed to oversee the implementation of the recommendations in the report of that task force.
Further, the work of the Task Force on Gender, Justice and the Courts took place under her leadership. When that task force found significant differences in the way that men and women were treated in the courts, Chief Justice Peters moved swiftly to change that disparate climate. Today, we have a policy in place that specifically condemns gender-biased conduct on the part of judges and judicial branch personnel. A handbook of guidelines to ensure fairness is also published and distributed to all the courts.
Chief Justice Peters has also advocated the effective use of modern technology to further the administration of justice in our state and has overseen the judicial branch's transition to the computer age. The Electronic Bulletin Board System for the expeditious reporting of judicial decisions is the most recent innovation in place because of her support.
Her uncompromising commitment to excellence has also led to the statewide implementation of the Continuous Quality Improvement Program, the Total Quality Management process, Employee Performance Appraisals and in an improved Management Development Program.
The safety and well-being of all who work within the courts also has been a priority for Chief Justice Peters and she has overseen measures that have dramatically improved the quality of life in the workplace. A wellness program for judges, new judge orientation programs and more stability in judicial assignments demonstrate her deep concern for those who are responsible for the administration of justice in the trenches.
Moreover, Superior Court programs she has initiated or has been instrumental in implementing, such as the One-Day/One-Trial Juror System, a Regionalized Juvenile Trial Docket, the Tax Court, and Alternative Sanctions and Alternative Dispute Resolution, provide greater efficiency, improved customer service, and a more equitable distribution of resources within the judicial branch.
The facilities in which justice is administered have also benefitted from her vision. Recognizing the importance of providing safe, clean courthouses equipped with modern amenities, Chief Justice Peters has presided over the planning or completion of ten new court facilities, as well as significant improvements in many others throughout the state.
Perhaps her roots as a distinguished member of the Yale University Law School faculty are responsible for her ongoing commitment to educating the public about the courts. The Supreme Court Visitation Program has demystified our appellate system for many by reaching beyond Hartford into other cities, towns and school campuses, so that each of our citizens, and particularly young people, may have the opportunity to learn about the appellate process and to observe it first hand.
To continue with Ellen Ash Peters' numerous accomplishments as Chief Justice would require more time than our schedules permit. But, it would be a great disservice to conclude without stating on behalf of this court, the judicial branch and the people of the state of Connecticut, that Chief Justice Peters has unquestionably and permanently changed the judicial branch to the benefit of all whom it serves.
Thankfully, when Ellen steps down as Chief Justice, we will continue to benefit from her scholarly pursuits and wise counsel as she begins her new role as a Senior Justice of the Supreme Court and is able to devote more time to the research and writing she loves so well. We - and especially I - look forward to her continued guidance, advice and friendship.
Thank you very much. The other night, at the Connecticut Bar Association dinner, I had the occasion to observe that Chief Justice Callahan will be a better model than the incumbent Chief Justice in many ways: taller and more genial. I have not changed my mind.
Today brings home the reality that September 1 is just around the corner. Some part of me wants to rewind the tape, back to last February or March, maybe - without the snow.
Rewinding the tape even further would bring me back to that November day in 1984 when I was first sworn in as Chief Justice. Then, as now, I was sustained by my loving family, my dear spouse, Phillip Blumberg, and two of my three children. Fortunately, David Peters has been able to be here on both occasions. In 1984, Jim Peters was teaching in Zimbabwe, a little too far for a ceremony here, but today he is here, with Professor Jean Koh Peters. And Julie Peters Haden is the one who cannot be here.
Then and now, and in all the years in between, I have been enriched by the contributions of my many hardworking law clerks, with whom I have happily argued and edited and spent many rewarding hours and days. Finally, throughout my days on the court, I have had superb assistance from other judges and justices, from innumerable members of the staff and from the legions of lawyers who have appeared here. How delightful that some could be here this morning!
Because, in 1984, no present member of this court was a Supreme Court Justice, the court looked different then. But, as an institution, the court has remained much the same. Whoever presides over the court, whoever sits on the court, the court has the same basic agenda, the same fundamental aspirations.
In this connection, I want briefly to paraphrase something that Bart Giamatti, the eloquent president of Yale University, once said about the university, because I think it just as true about the judiciary. Taking liberties with his text, I quote: "[The court] constantly challenges the capacity of individuals to associate in a spirit of free inquiry, with a decent respect for the opinion of others. Its values are those of free, rational and humane investigation and behavior. Its faith, constantly renewed and ever vulnerable, hold that if its values are sufficiently respected within, their growth will be encouraged without. Its purpose is to teach those who wish to learn, learn from those it teaches, foster research and original thought, and ... to disseminate knowledge and to transmit values of responsible civic and intellectual behavior. That purpose can never become the captive of any single ideology or dogma. Nor can it be taken for granted.
"In its purpose, the [court] embodies the pluralistic spirit of America, and it embodies that spirit in another way as well. The country's promise that diverse people, with diverse origins and goals, can compete on the basis of merit for the fulfillment of their aspirations, is also the basic premise of [the work of the court] .... If [the court] is to [be a leader] in the development of the law, it ... must [be prepared to] ... respond to every part of the larger society."
Being Chief Justice has given me the opportunity to help the judicial branch to reexamine and to renew its age-old commitment to the spirit of pluralism, to its responsibility for assuring justice for all. I am endlessly grateful to have had that opportunity and, as well, for the immense pleasure and great satisfaction that has come with presiding over this court in the beautiful courtroom.
If they could have shared this day, my grandfather, the lawyer, and my father, the lawyer, would have been pleased. My mother would have felt rewarded for her insistence that, early on, I should make up my mind about finding a profession to pursue. And my sister would have been glad that her boundless encouragement had helped her kid sister to realize the most impossible and unlikely of dreams.
The best, however, is yet to come! I can ask questions from any chair, wherever it is located behind this bench! I look forward to continuing to participate in the work of this court and most especially to serving under the new Chief Justice, for whom my admiration knows no bounds.
Thank you all.
REMARKS OF CHIEF JUSTICE FRANCIS M. MCDONALD, JR., IN HONOR OF
THE LAST DAY THAT JUSTICE ELLEN ASH PETERS SAT AS A MEMBER OF THE SUPREME
DECEMBER 7, 1999
Family, friends and colleagues of Chief Justice Peters, I welcome you as we end an era in the history of the Connecticut Supreme Court and of this state. Today is the last day that Justice Ellen Ash Peters will sit to hear cases as a member of the Connecticut Supreme Court. I am happy that her husband Professor Emeritus Phillip Blumberg, former Dean of the University of Connecticut School of Law, and her son James Peters are able to be with us as we honor her.
Twenty-two years ago, Ellen Peters was nominated by Governor Ella Grasso to become Connecticut's first woman Supreme Court justice. When the Governor's counsel, Jay Jackson, telephoned to request a meeting, the busy Yale law professor considered declining the invitation, so sure was she that she was to be appointed to yet another committee. Fortunately for Connecticut, she answered the call and was appointed to the Supreme Court on May 10, 1978. Justice Peters quickly forged a reputation for scholarship and the courage of her convictions, which continued in her nearly 700 opinions, 640 majority, 19 concurring and 13 dissenting.
Justice Peters, as the first woman to do so, took the oath of office as Connecticut's Chief Justice on November 21, 1984, and became a first rate administrator. I can tell you from personal experience, that is no mean accomplishment. During her twelve years as head of the Judicial Branch, Chief Justice Peters led us into the technological age, oversaw innovations such as education and support systems for trial judges, presided over the building of ten new courthouses, and encouraged the consolidation of Judicial Branch functions, using our resources to meet the challenges of the time.
Justice Peters, concerned about the intrinsic fairness of our courts, initiated task forces to examine public perception of bias and prejudice and to develop ways of dealing constructively with these issues.
On the national scene, as a member of the Conference of Chief Justices, Chief Justice Peters became, in July, 1994, the first woman President of the Conference and Chairperson of the Board of Directors of the National Center for State Courts. Her energetic and capable leadership in those offices brought national attention to our state and enhanced the reputation of this court.
As Justice Borden stated on the occasion of her 1995 receipt of the Raymond E. Baldwin Public Service Award, "Ellen Ash Peters has been a superb Chief Justice. She combines extraordinary intellectual power, a keen sense of history, and an ability to balance the justice of the particular case with the general coherence of the law, with firm but fair judicial and collegial leadership."
In State v. Stoddard, Justice Peters recognized the state constitution as a basis for individual liberties. That 1988 opinion, which established that Connecticut law enforcement officials have a state constitutional duty to inform a suspect of his counsel's efforts to provide legal assistance, was very important in that area. Justice Berdon praises Justice Peters' "leadership in the development of our state constitutional jurisprudence in order to provide the citizens of this state greater protection of individual rights."
Justice Peters' reading of our state constitution is best known from her 1996 landmark decision in Sheff v. O'Neill. Marching far ahead of the federal courts, Justice Peters wrote that our state constitution guarantees equal protection and free elementary and secondary education. This she saw as a solution for the debilitating effects of racial and ethnic isolation upon the Hartford public schools. Her willingness to develop a judicial solution to this persistent problem reveals her view of the law as a force for equality and progressive change.
In Sheets v. Teddy's Frosted Foods, Inc., one of Justice Peters' early opinions, she gave an indication of the skill with which her opinions would be crafted. Sheets alleged that he had been fired from his job as the defendants' quality control director in retaliation for his insistence that his employer's products comply with the provisions of Connecticut's Uniform Food, Drug and Cosmetic Act. At a time when "whistle blowing" and employment at will conflicted in the employment arena, Justice Peters' opinion, establishing judicial protection for employees terminated for reasons that violate a clear public policy, wrote new law. As Justice Norcott has remarked, "Her ability to cut to the nub of an issue, and force the court to confront its essence has been critical in the opinion process."
Ellen Ash Peters has served the state of Connecticut for almost twenty-two years. Her legacy to us will be forever found in her scholarly and thought-provoking opinions. Beyond the written word is the person. In the words of Justice Katz, "Ellen's brilliance and scholarship are well known, but for me her contribution has been of a more personal nature. She has been a role model and mentor for over twenty years, and I will continue to look to her for keen insight and friendship."
Legendary for a keen intellect, perceptive common sense and ability to persuade, Justice Peters has contributed, in addition to her almost 700 opinions, penetrating legal commentary on virtually every aspect of our law. She has produced thirty-two scholarly writings and bar review articles. In the words of Justice Palmer, "her achievements and contributions are many and extraordinary, and will endure for generations."
On September 1, 1996, Chief Justice Peters elected to assume senior status. At that time, only four other judges had been chief justice for a longer period. Chief Justice Callahan then served as Chief Justice and I came to the court. Justice Sullivan followed. Both her successors as chief justice deeply value her guidance and advice. Over the past two years, in addition to carrying a full complement of opinion work, she has returned to the Yale Law School where she teaches The Other Side of Federalism, a course she designed dealing with state courts.
During her time on the court, Justice Peters has worked with thirty-four law clerks, many of whom are here today, and all of whom have gone on to make her proud. The pleasure with which she talks of their accomplishments, in private and public practice, as well as in the legal academic field, tells what kind of a teacher she is.
Some of the highest words of praise for Justice Peters come from the support staff: "Rarely has there been anyone with such intellect, energy and vision"; "By setting the highest of standards, Justice Peters inspired me to achieve more than I had ever hoped"; and "She never expects of anyone what she is not willing to give herself -a true leader."
As I look about this room I see two murals. In one, the founding fathers of Connecticut listen to the Reverend Hooker while composing the Fundamental Orders of Connecticut. Every founder is a man. Ellen Ash Peters did not come to this land on the Mayflower. If she had, her intelligence and skill would have resulted in a woman being in that mural. Rather, she came from the Nazi terror, past the Statue of Liberty holding the flame of liberty. There is a certain glory in this anniversary of the day that Japanese bombers awakened a sleeping giant and dragged Hitler into a war with America which destroyed his tyranny. Chief Justice Peters has passed that flame onward as in the mural on the ceiling.
I congratulate you, Chief Justice Peters.