Attorney Dan Krisch ()
I am paying fond tribute to a mentor. Late last month, former Connecticut Chief Justice Ellen Peters announced her retirement after nearly four decades as an appellate jurist. As is her wont, Justice Peters was self-effacing at her retirement ceremony – she mainly spoke about the influence on her career of two of her colleagues, former Justices Robert Glass and David Shea – so I will boast a bit on her behalf: One of the greatest judges in Connecticut history has hung up her robes and we are the poorer for her going.
I clerked for Justice Peters during the 1999-2000 Supreme Court year. It was an unsettled time for her. Justice Peters turned 70 that March and constitutional fiat forced her to trade the familiar confines of 231 Capitol Avenue for the cramped quarters of 95 Washington Street. Like my father, Justice Peters is a Berlin-born yekke – a Yiddish term that connotes the German-Jewish cultural inclination to revere attention to detail and to harbor distaste for disorder – and the prospect of being uprooted from her professional home of the previous 23 years must have taken its toll.
If the impending change made her uneasy, however, Justice Peters did not show it, either in her work, or in her mentoring of me. During my clerkship, she patiently taught me the paramount place of clarity in legal writing (while also instilling in me, as I suspect happened to every one of her clerks, a loathing for split infinitives, any misuse of “that” and “which” and substituting “since” for “because”). Though their authors might yearn to write creatively, Justice Peters would remind me, judicial opinions are not novels; they are instruction manuals for trial judges and lawyers.
And so, to borrow Barbara Tuchman’s description of Anatole France’s prose, Justice Peters wrote opinions as clear as a running brook. Even when trial judges disagreed with one of her decisions – State v. Brown, 235 Conn. 502 (1995), for instance, occasioned some grumbling from the trial bench because it imposed a sua sponte obligation to inquire into alleged juror misconduct – they never were in doubt as to its meaning. The defining feature of a Peters’ opinion was its opening paragraph, which announced, in plain and forthright language, the issue that the opinion would decide.
Her clarity of thought matched her clarity of pen. Justice Peters had a matchless talent for drawing out the real issue in a case before attempting to analyze it. Whether through her questions at oral argument – often begun with the polite, but nonetheless terrifying, “Counsel, help me with …” or “Counsel, I’m struggling with …” – or through discussions at conference and in her chambers, Justice Peters knew that you rarely get the right answer unless you first ask the right question. (That I was able to imbibe a bit of that talent resulted in what still is one of the proudest moments of my legal career: When Justice Flemming Norcott Jr. opened his dissent from Justice Peters’ majority opinion in State v. Ross, 251 Conn. 579 (1999), which I had helped author, with the admission that he found “the analytic reasoning set forth by the majority to be flawless”.)
Yet neither Justice Peters’ eloquence as a writer, nor her brilliance as a legal scholar, was her greatest judicial attribute. Her foremost gift was her understanding of the necessity of principled compromise for unelected judges in a democracy. She had, in my estimation, only one absolute belief: that, for judges, there must be no absolutes. Perhaps this understanding sprang from her immigrant experience, an outsider’s keen eye for the workings of her new home; perhaps early on she imbued the limits of judicial power implied by President Andrew Jackson’s (possibly apocryphal) response to Worcester v. Georgia, 6 Pet. 515 (U.S. 1832): “John Marshall had made his decision, now let him enforce it.”
Whatever its source, Justice Peters had a genius for balancing individual rights and political reality, for safeguarding the former without turning a blind eye to the latter. Most famously, her opinion in Sheff v. O’Neill, 238 Conn. 1 (1996), held that de facto segregation in Hartford’s public schools violated the Connecticut Constitution, but left the solution to the legislature. Justice Peters knew that the bitter medicine of court-ordered integration would go down more easily if the legislature had a hand in the prescription.
In a similar fashion, her opinion in Cotto v. United Technologies Corp., 251 Conn. 1 (1999), held that Conn. Gen. Stat. § 31-51q barred private, as well as public, employers from infringing on their employees’ free speech rights, but limited 31-51q’s application in order to account for the legitimate interest of private employers in a workplace that actually works.
Sheff and Cotto are but two examples of Justice Peters’ unerring sense of the proper place of our courts in our oft-unwieldy political system. It was a subject about which she knew much, thought often and cared deeply. It is her greatest legacy to our state: a judicial philosophy worthy of emulation.
As this is a reminiscence and not a law review article, allow me to end on a personal note: Justice Peters’ legacy to her clerks was her intense and warm interest in our growth – as people, but especially as lawyers. When I finished my clerkship, Justice Peters wrote me a long thank-you note that was full of both praise and much-needed advice. I have the note still, in a box with a few other cherished items. Every so often I reread it and measure myself against it and recall my good fortune to have spent a year in her chambers.