State constitutional law in the land of steady habits: Chief Justice Ellen A. Peters and the Connecticut Supreme Court.

• Author: Piecuch, Michael F.J.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

Introduction

Over her nearly two decades on Connecticut's high court, former Chief Justice Ellen Ash Peters(1) has earned respect as a scholarly jurist(2) and an innovative administrator.(3) Citing a desire to write more opinions, resume scholarly work, and to spend more time with her family, Peters resigned as the state's Chief Justice on August 31, 1996.(4) Although Peters came to the Supreme Court with a specialty in commercial law,(5) she has played a pivotal role in "rediscovering" the protections of individual liberties found in the Connecticut Constitution.(6)

Part I of this Comment discusses the reemergence of state constitutionalism in the late twentieth century. As the tide of federal constitutional dominance recedes, state courts are left grappling with surprisingly unfamiliar territory: determining the meaning of their own constitutions. This part will explore Peters' view of state constitutional methodology, her commitment to fostering independent state courts, and her role in creating a modern framework for interpreting the Connecticut Constitution. In order to fully measure Peters' impact on the court and her colleagues, however, her role must be viewed in a larger context.

For advocates of state constitutional claims in Connecticut, the 1990s started on a somber note with the retirement of Justice Arthur H. Healey, the Connecticut Supreme Court's "undisputed champion" of expanding constitutional protections under the state charter.(7) Despite the national reemergence of state constitutionalism,(8) the Connecticut Supreme Court's slow progress prompted one commentator to declare that the "Great Awakening [was] ... looking more and more like the Big Snooze."(9) With the election of an independent governor in November 1990, however, hope sprung anew. Lowell P. Weicker, Jr., a maverick Republican and former United States Senator, formed his own party to propel himself into the Governor's Mansion.(10)

It was no small coincidence that Weicker, a staunch civil-rights advocate, chose the Charter Oak as his party's symbol.(11) By 1992, four other justices had left the high bench, giving Weicker the rare opportunity to appoint a majority of the seven member court by the mid-point of his first (and only) term of office: "I think it's an exciting opportunity for the governor to shape the highest court, to make it one of the premier Supreme Courts in the nation," gushed Weicker's chief of staff.(12)

The suspense mounted. Could this insurgence of new blood invigorate the court or would collegial forces sustain the status quo? Part II of this Comment seeks to answer that question by surveying state constitutional history in Connecticut. In particular, this survey compiles Connecticut Supreme Court cases from a recent five year period (1991-1995, inclusive) which substantively address state constitutional issues. This part categorizes each justice (and the court as a whole) as conservative or liberal, analyzes voting patterns of individual justices, and identifies correlations of voting behavior among the justices. The results show the influence of Peters' steady guidance in the development of state constitutional law in Connecticut and her reliance upon the common law tradition.

1. The Honorable Ellen A. Peters

   1. Exposing the Shores of State Constitutionalism

      1. Recycling the Old Federalism

         Twenty years have passed since Justice William J. Brennan issued his "now famous wake-up call" for renewed state constitutionalism.(13) The protections guaranteed by state constitutions, overlooked for years by virtue of federal constitutional dominance, are gaining new attention and respect under the jurisprudence of the new federalism.(14) Justice Robert I. Berdon of the Connecticut Supreme Court has noted the catalyst for the renewed focus on state constitutions: "Given the reluctance of the present United States Supreme Court to expand upon, or even to preserve, the blueprints for liberty developed by the Warren Court, lawyers are again turning to their state constitutions as sources of individual liberties and protections."(15) During the 1960s, the expansion of federal protections of individual liberties under the Warren Court reached the high watermark.(16) Under the Burger/Rehnquist Courts, the receding tide has exposed shores which had been flooded for years.(17)

         The state constitution as a "source[] of individual liberties and protections' is not a new concept.(18) The so-called "new federalism" shares many of the characteristics of the "old federalism."(19) First, state constitutions have historically been "the fundamental document[s] protecting basic rights against encroachment by state and local governments."(20) Until relatively recently in our nation's history, state courts necessarily provided the forum for enforcing basic rights because of the virtual absence of federally protected rights.(21) Federal question jurisdiction did not arrive until 1875.(22) At the time of its adoption, the Bill of Rights restricted the federal government, but not the states.(23) The Fourteenth Amendment, adopted in 1868, was altogether ignored until the turn of the century and its promise unfulfilled until the 1960s.(24) Ironically, the Warren Court's role in rapidly expanding the scope of federal constitutional rights contributed greatly to the atrophy of state constitutionalism.(25)

         Secondly, states have the inherent autonomy to experiment with creative approaches to their constitutional issues.(26) As Justice Louis Brandeis stated, "[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."(27) While Justice Brandeis was referring to state legislators, his logic is applied equally well to state court judges.(28) State courts must determine, "in light of state interests and state history, what meaning to attribute to provisions contained, in state constitutions."(29) By exercising their inherent authority to independently interpret their state constitutions, state courts may extend liberties beyond those protected by the federal constitution, and they may find that the protections are the same under both documents, or even decide that federal guarantees reach further than their state counterparts.(30)

      2. The Methodology of State Constitutionalism

         Following decades of federal dominance of constitutional rights, state courts require the courage cited by Justice Brandeis to independently interpret their own constitutions. Remarking on the revival of state constitutionalism in 1986, Peters pointed out its stumbling blocks:

         The dearth of scholarly analyses, due chiefly to the

         preoccupation of constitutional scholars with the work of the United

         States Supreme Court interpreting the United States

         Constitution, has unquestionably increased the difficulties

         that state courts have encountered in their nascent efforts to

         take state constitutional rights seriously.(31)

         In addition, state constitutionalism has been hindered by lawyers' failure to effectively develop arguments based on state constitutional claims.(32) Naturally, lawyers' "field of vision is narrowed by their educational blinders' because most law school courses on constitutional law are dominated by U.S. Supreme Court decisions and lack specific attention to state constitutions.(33) Of course, judges and their law clerks have not been immune to the blinders of federal dominance.(34) State courts continue to grapple with their own autonomy as they emerge from the shadow of federal dominance, creating considerable debate "reflect[ing] important differences about methodology -- about when and how a state court should rely on its own constitution.(35)

         So far, the debate has focused on four general categories of interpretive methods:(36) primacy,(37) dual sovereignty (or dual reliance.),(38) supplemental (or interstitial),(39) and lockstep.(40) While stressing the sequence in which state judges consider state and federal provisions, these methods reveal two fundamental interpretive presumptions.(41) Under the primacy and dual sovereignty approaches, state courts assert their autonomy by presuming that federal precedent refers solely to the federal constitution.(42) On the other hand, the supplemental and lockstep approaches presume that "departure" from the federal norm constitutes an exception which requires justification by special circumstances.(43) In essence, state courts decide whether interpretation of their state constitution will be an exercise in autonomy or deviation.(44)

         By deciding which claims to consider, and in what sequence, on a case-by-case basis, Peters has refused to be pigeonholed into any one category: "My own view is more eclectic."(45) Unlike other judges, Peters continues to display a loyalty to developing an independent jurisprudence under the state charter which rejects ideology as a motivator.(46) As discussed in the next section, Peters' philosophy on the role of state courts is committed to the autonomous interpretation of state constitutions.

      3. Autonomous Interpretation

         In view of the American system of federalism, Peters has held that state courts have an obligation to give independent meaning to state constitutions in light of state interests and history.(47) Conventional wisdom holds that the federal constitution sets a foundation of rights upon which a state's constitution may build, but may not undermine.(48) As Peters has pointed out, this maxim binds state courts only in application, but not in interpretation: "If [state constitutional provisions are interpreted to provide rights less than those guaranteed by the federal Constitution, then in application, but not in interpretation, state law must give way to the supremacy of federal law under the federal Constitution."(49) Despite the Supremacy Clause, state courts retain their inherent authority to determine...