in the past, be with the States. But that the Federal Government, in recognition of the additional responsibilities that have been imposed on State court systems by governmental developments which are outlined in the task force report, should provide the means by which the personnel, the facilities that we have in the States now, can be used to the highest level of efficiency and effectiveness in the State and national interest.

I believe that the developments insofar as the Federal budget is concerned, that we know about, really accentuates the need and the importance of the State Justice Institute Act and, from my point of view, confirm and reinforce the reasons that we have in the past advanced in support of this proposed legislation.

Those would be the only comments that I would care to add to what I have made before, Mr. Chairman. Mr. Utter and I plan to respond to your questions, of course.

Senator HEFLIN. We will hear anything you would like to state, Chief Judge Utter.

STATEMENT OF CHIEF JUSTICE ROBERT F. UTTER, SUPREME COURT OF WASHINGTON

Justice UTTER. Senator, I would like again to express my personal delight at the opportunity to appear here, at your longtime interest, and the interest of the staff. You have the staff who are gathered on this bench around you. The problems of the judiciary have long been evident.

You have said really most of what can be said in your introductory remarks. In addition to what Justice Sheran has said, I think there are three reasons why the State Justice Institute offers a better way to do what we are doing now.

The first is that it is a concept that is both constitutionally and conceptually correct. You touched on the constitutional problems. For those in this area who have not been judges, those are hard problems to appreciate, but they are very real. The old honored concept of separation of powers really is at the heart of each branch of Government being able to work well with the other.

I think that if there had to be a fatal flaw in the current way the Federal Government deals with State courts, that is it. It is just simply a process that is not constitutionally correct, no matter how well intentioned. No one has ever questioned the intention.

The concept is also correct. That simply is that you have the people who are concerned about doing a better job in their States taking over the responsibility for setting priorities, for setting goals, and then stimulating each other to do it. It is not a case of the States asking the Federal Government to do more for us. We say simply we want to do more for ourselves. Give us the tools to do it for the margin of excellence, as Chief Justice Sheran says. Then stand back and give us room. Now, in saying that, we want to press the concept of giving us room, I think the State Justice Institute, on the other hand, emphasizes accountability, a greater accountability than the current structures can now give, because all of the programs that would deal with State courts would be focused in a single federally created agency that the States would be responsible for. There is at least one-time-a-year, both

fiscal and programmatical, accounting that would be available to this body for the charge and the funds that were made available to that institute.

Third, I think that the State Justice Institute is more effective because it coordinates, as a unified, national structure, State judicial programs in a way no one else can now do it. The National Center for State Courts is a superb organization, but they are simply another private organization, like the National College for the Judicial, and several other private national organizations. They can't be more equal than the others. You need one focal group that, in effect, is just that, more equal. The State Justice Institute is that Federal chartered corporation that would be that group. It would be able to prioritize Federal assistance to the agencies that national groups serve, the State courts. It would emphasize the accountability of those who provide service. Decisions could be made on a more realistic basis than merely services rendered.

I am very privileged this morning to hear in this time of national budget crises, those of you who deal with the problem, speak a bit as to how you see this concept fitting into an effective and efficient way to deal with those problems. I would be excited if the State Justice Institute could, in fact, be a part of that. I have been a judge now for 20 years, in the trial and appellate bench of our State. I have been since the start of the national LEAA program dedicated to making that program work. I would hate to be a part of seeing at least those 13 years of effort be wasted.

The concepts I have seen suggested today, some of them spoken by you, Senator, some by Mr. Feinberg, some by others, seem to me to offer a way to preserve that 13 years of effort in a way that may be different structurally, but still would work. That is an exciting thing for me to simply be a part of this morning.

I think the reason why that approach may be sound is that in a time of crisis, budgetary or otherwise, we want to firm up those existing structures that we have. State courts are certainly existing structures already in place with a firm tradition of service and a commitment to excellence, in serving not only the people of their States, but their Federal Government as well. They have done this by, I think, encouraging the passage of your bill and the bill now filed in the House as well.

I think that we can accomplish the goals that you strive for and the other witnesses have as well today.

Thank you for the privilege of being here.

Senator HEFLIN. Thank you.

Chief Justice Sheran, I was interested in your remarks about how you felt on a competitive basis between LEAA and a future State Justice Institute Act program, that it would be more cost efficient. I would appreciate it if you would elaborate a little bit more on that and tell us the reasons why it would be more cost efficient, to go into some details on that.

Justice SHERAN. I start from the principle that the dollars extended for the improvement of State court systems will be best expended if they are used for purposes which the people in the States responsible for the performance of system regard as being of the highest level for priority attention. Stated more simply, I think that the chief justice of a State or the judicial planning committee of that

State, if it is a State that functions through a judicial planning committee, is in a better position to judge what is needed to make that system work effectively than either a State planning agency, which is the decisionmaking functionary at the State level under the present system, or a department of the Attorney General's office in Washington, which is the decisionmaking entity viewing the matter from the Federal level.

From the Federal level under the bill, the implementary decision would be made by a board of directors that would consist of judges and State court administrators and representatives of the public, appointed by the President, but in significant part, upon recommendation of the chief justices of the States who, in most States, are the people responsible for the efficient functioning of the system.

So at both levels, you have the priorities fixed, the needs assessed, by the people who are chartered under State law with the responsibility of making the system work effectively.

It seems to me that to state that, is to demonstrate that the dollars used are going to be used with greater effectiveness.

Senator HEFLIN. Did I interpret that part of this would be thatto say it as a medical doctor the diagnosis of the ills of a State court system would be made from an evaluation of the overall State justice system there, with some restraint, goals, or guidelines, from the Federal body that determines some of these overall issues? You are now limited in your diagnosis of the ills of a State court system, or its needs by having to focus largely on the criminal justice aspect. You have an overall matter of where criminal and civil equity in all phases of the justice system would be diagnosed at a State level in order to make it healthier. Therefore, in looking at the overall situation, the diagnosis of how you would use something like 2 percent of the overall judicial budget where it would be the most help, would make the funding system more cost efficient.

Justice SHERAN. I think so, or to use an analogy that was borne out in my own background, if I am trying to make the most effective use of fertilizer on a farm, the person who knows where that fertilizer ought to go is the fellow responsible for running the farm. In that kind of a situation, there is always some committee made up of people who do not have experience in farming.

That is actually what it was before the 1976 amendments. You went before a State planning agency, where the members had no knowledge of the needs of the court system. For the analogy, they had no knowledge of farming or the needs of that farm. But they decide where the fertilizer is going to be placed and that was not very good judgment. Yet that is the way the old system worked.

That has been modified, of course, by the 1976 amendments, which put into place the judicial planning committees. What the State Justice Institute Act does is institutionalize the correct idea, which the judicial planning committees tried to accomplish in a less than entire way. The feature of this aspect of the matter that I think is important is this. Everybody realizes that you improve State court systems by addressing the problems of the systems on a statewide basis. What you are trying to get away from is dependency, in the States, of local courts to be concerned exclusively with local problems, without realizing the necessity of having a plan so that justice in the State is, as far as possible, uniform throughout the State.

If everybody agrees that that is the way you deal with State judicial problems most efficiently, isn't it obvious that you are going to be less cost effective if you move around the people in the States that are responsible for the improvement of the system and deal, as to a certain extent is true under the present act, with the local agencies whose concerns are not statewide concerns?

The best you could hope for is that you create a time-consuming, money-consuming kind of conflict between the local coordinating agencies and your State planning agencies. That is the best you could hope for. The point is that you are going to get better results with the same amount of money if you place the responsibility on a State level. In that entity, the State is charged with the responsibility of making that system work effectively; the entity is responsible for the deployment of 98 percent of the total cost of making the system run. It is going to work better from a Federal point of view if the Congress lays out some broad policy that gives them to a Federal entity to implement which is made up of a board of directors that come out of a background that is judicially oriented, rather than having comparable decisions made from the executive department of the Federal Government, as is presently the case.

In that regard, I would like to emphasize again, there is no question but that men like the witnesses who appeared here this morning, people of remarkable skill and ability, have done great things for the improvement of State court systems. But I am suggesting that that is more attributable to their personal capacities than to the structuring of the law that we are presently operating under.

Senator HEFLIN. Chief Justice Utter, I have been asked many times since I have been in the Senate, by friends, "Which do you like best, the Senate or the judiciary." I usually reply that both have attractive features, and that I enjoyed being a judge and I enjoy being a Senator. Then some people ask me what is the major difference. I have replied that I think, primarily, the major difference is that as a judge I had the benefit of some isolation, whereas as a representative person making decisions in Congress, I am subject to a great deal of arm twisting by special groups and special people. I think that is the way it should be. I think, of course, insulation can be carried too far. Some people get completely isolated. Rather than maybe using the word isolation, insulation means protection. In the context of the judiciary and the ethics of the bar association and lawyers, you don't arm twist judges.

In the judiciary, there is danger of a lack of insulation structurally in the type of program that we are talking about, one of Federal control. You need an insulation in the judiciary from Federal control. Second, you need an insulation, in a program such as this, from the executive branch of State government. Our people are not familiar with and have not said that there is that need, because there are many things in State government, legislators that appropriate money, Governors, and people involved that have litigation in courts. I think it is essential that there be a form of insulation, moral and also structural. Of course, there is the insulation at their local units of governments, as it would apply to local units of the judiciary. In looking at this bill, which largely is the brainchild of yourself, Prof. Frank Remington, and others that have worked on it, it seems to me that you have provided that necessary insulation without isolation for the judiciary and for the program.

You have a program of insulation and protection from Federal controls in that you have an independent board of directors composed of State judges, State court administrators, and, in effect, people who are interested in the State, who will not be under Federal control. It is somewhat similar to the legal services concept as it grew up to provide that an administration wouldn't have any Federal control over it. You are, under the separation of powers, given insulation protection from your State government's executive branch staff and similarly, under this concept, from the local units of government. They, in effect, do not pass on or are not involved as to the local use. Rather it would be the judiciary State board.

So, just offhand, my-rather than ask him the question—I am just articulating some thoughts that have come to me without a lot of thought. The use of the word insulation rather than isolation is important because I think you have to be cognizant of the needs of a criminal justice system-an overall system. You have to be cognizant and not isolated from the needs of a society that is changing and moving. I think basically the judicial branch has been really more responsive over the years to changing concepts, such as in civil rights and other matters that have grown up, than maybe the Congress or the executive branch of the Government has.

As you foresee this-maybe-does this system give you the needed protection that the judiciary should have from first, Federal control; second, from State executive control, and third, from local units of government control?

Justice UTTER. I feel comfortable with it, Senator. I would feel uncomfortable if it did not provide for accountability. I think it does do that. I welcome accountability. I think that sharpens our focus and our mandate.

You have touched on the area where accountability ends and simply doing the job gets started. I think those areas are amply provided for in the bill.

You have had the experience, I know, of drafting by committee. We submitted this bill first to our own committee and then all 50 chief justices of the States. They had an ample opportunity to look at it and criticize it. I think I can speak for them when I say they feel satisfied as well that the protection they need, the isolation they need, and yet the creative tension that they need with the other branches is maintained as well.

I appreciate your comments. You do understand the bill well. It is what we hoped could be provided.

Senator HEFLIN. Mr. Velde?

Mr. VELDE. Thank you, Mr. Chairman. Just one question.

Chief Justice Sheran, I understand that this bill is patterned after the organizational structure of the Legal Services Corporation. Its structure, in fact, is almost identical.

You have indicated that the relationship between the State courts and the various kinds of LEAA assistance, either State or Federal, have not been-I think your words were constitutionally correct.

If it were not for the individuals involved, perhaps there could have been some difficulty. I guess the implication is, then, based on your support for this bill that the organizational structure of the Legal Services Corporation would be more to your liking. And yet,