you tend to obscure the lines of distinction that must be maintained between those departments.

The separation of powers doctrine must be observed and, more importantly, the reasons for the separation of powers doctrine must be adequately fulfilled. To be sure that the judiciary must cooperate with executive branch agencies and with the legislature, but it also must maintain a certain measure of independence, if you will, of remoteness, if you will, so that it can perform its basic function of independently emphasizing the importance of the rights of the individual in the process of the detection, apprehension, and punishment for criminal behavior. That is right to the heart of what we are talking

about.

Mr. FEINBERG. But, my final question is how is it possible? How do we strike the balance, Judge, if we separate out the judiciary under this bill? How do we assure that the criminal justice system, which runs together in one system-judges, district attorneys, police, corrections, that is what the system is all about-how do we be sure that we are not going to lose that type of coordination in promoting communication input in a true system of criminal justice if the judiciary, which is at the heart of the system, is separated out when it comes to Federal funding treatment?

Mr. SHERAN. Well, in essence, useful cooperation between the branches of Government is that they manage to maintain independence and engage in the kind of cooperative efforts that independent posture permits. That is something that is involving the exercise of the greatest political and governmental talents that we can apply to it. But we don't solve the problem by eliminating the difference that exists between these branches of Government. We solve it by developing methods of cooperation short of putting executive and judicial department agencies into the same compound as it relates to funding its

court.

I cannot help but repeat that I think, Mr. Feinberg, that these questions that you have put to me go directly to the heart of what we are talking about. The answer must be that the reason that you distinguish between the judicial branch of Government and the police and corrections, which are part of the executive branch of the Government, is because the Founders of our country made that distinction in the Federal Constitution, a distinction which was repeated over and over again in the constitutions of several States as they joined the Union. Senator HEFLIN. Mr. Velde, do you have some questions?

Mr. VELDE. Thank you, Mr. Chairman. May I say at the outset, first of all, I am very pleased to see some old friends and acquaintances here and recall the happy years in working with them. Also, I want to express, Mr. Chairman, that Mr. Dole regrets that he is not able to be here this morning, but he does have some rather heavy responsibilities with the windfall tax legislation and he could just not get away from it, but he wanted me to express his interest to you on the work of this subcommittee on this paraicular bill and I think you will find that the minority is willing to work out whatever can be worked out by way of a constructive solution to the problems that are being identified here this morning. Mr. Chairman, just two or three very brief questions. First, Chief Justice Sheran, you indicated that for 3 years you served as chairman of the Minnesota State Planning Agency Supervisory

Commission. I believe through the years that several of your brethren have served in similar capacities, specifically in the State of Louisiana where the chief justice there served in a similar capacity. I also recall that other chief justices refused to participate in the planning process, I believe, primarily out of concerns over the possible violation of the concept of independence of the judiciary. What was your experience in serving in this capacity?

Mr. SHERAN. I probably should have noted, Mr. Velde, that during the time that I was serving as chairman of our State planning agency, I was in private practice. For a period of 4 years between my service as associate justice on the supreme court, I returned to the court as chief justice. I was in private practice and it was during that period of time that I served as chairman of the State planning agency, so I didn't have the problem. When I returned to the court as chief justice, I felt the concerns that you have expressed to the point that I resigned the chairmanship. It poses a problem, I think.

Mr. VELDE. Although I believe the chief justice of Louisiana did serve in that capacity and I believe a former chief justice of the State of North Carolina absolutely refused to take any LEAA funds or to allow any of his judges or court administrators to participate in any of the planning activities or any other participation in the LEAA program, it seems to me that there were some difficult problems, conceptual difficulties that were answered in one way in certain States and in another way, the opposite answer, in other States.

Mr. SHERAN. I think that is correct. I am not sure precisely in what States members of the supreme courts have served as members or chairmen of the State planning agencies, but there is a difficult conceptual problem and different chief justices and supreme court judges have had different responses to it.

Mr. VELDE. Would the creation or establishment of a State justice institute serve to insulate or protect the State judiciary from, apparently, some of the perceived difficulties that at least some of the State courts have felt through the years by participating in the LEAA program?

Mr. SHERAN. Yes. And for the reasons that I have mentioned before, that if at the State level you have eliminated the kind of competition for a common quantity of funds as between the police and corrections, the executive department agencies on the other hand, judiciary on the other, and if you let the policy determinations as to the deployment of the funds that are made available to the State judicial systems be made by people whose primary concern is with the State judicial system, you have solved it on the State level.

If on the Federal level, you establish an entity with membership appointed by the President of the United States but drawn from a group of people whose exclusive concern or at least primary concern is with the improvement of State judicial systems, you have solved it on the Federal level. In my judgment, you have made it possible to achieve better results with the same quantity of resources, yet more results out of the same allocation of Federal support and you are able to do that. You are able to be cost effective in a way consistent with basic constitutional principles which underlie the kind of difficulties that we have experienced during the past 10 years, notwith

standing what has been a very cordial personal relationship between the authority of the LEAA on the one hand and the people responsible for the State court system on the other.

Mr. VELDE. What do you conceive, Mr. Chief Justice, of the role on participation of prosecution and defense in the State justice institute. Would there be any, and if there is

Mr. SHERAN. In my own conception of the matter, the prosecution and defense functions should not be a part of or considered in the same vein with the adjudicatory functions of the court.

In my own experience in the State of Minnesota, we are meticulous about keeping a line of separation between the judgmentmaking function of a court system and the charging function of the prosecution. We are very careful to avoid any kind of a situation where our court system undertakes to manage or control or unduly influences the processes by which defense services are made available to the people who come before our courts to stand subject to our judgments. The reason we do that is because the give and take of the advocacy process is not, in my judgment, at least, well served if judges become one day prosecutors by sort of osmosis and another day defense counsel by osmosis.

It is the preservation of the independence of the system that makes possible the most just results in the process and that, really, is what underlies what we are undertaking to present.

Mr. VELDE. It would probably not be feasible or desirable to expand the charter of the Legal Services Corporation to include the broader mission to assist the courts, as I guess its efforts are primarily focused toward the defense function now.

Mr. SHERAN. I don't think that our committee has addressed itself specifically to the question which you just now put, but my spontaneous reaction is that that would be a very unwise course at the

moment.

Mr. VELDE. Sir, do you have any estimate of the dollar resources that might be required by way of an authorization to support the work of the Institute?

Mr. SHERAN. I notice that in the bill, as presently prepared, it contemplates first year funding at the $20 million level, second year funding at the $40 million level, third year funding at $60 million, and thereafter, at such level as should appear to the Congress appropriate.

While I mention these figures, and I am now here speaking more personally I think, perhaps, than for the task force, but I think it is less important at what level the Congress funds this concept than it is that the concept be understood and employed. We all realize that the concern of the Congress in dealing with Federal resources formulating a Federal budget is consistent with efforts to control inflationary trends. We understand it, but are sympathetic with it. So my response to your question is that while these figures are used in the bill and while they seem to be consistent with what the pattern has been in the past, in my judgment, and I think this is shared fairly generally by the other chief justices, the significant thing is not so much the level of funding, but the methodology by which the funding is made available to the State court system by joint efforts to improve the process.

Mr. VELDE. I take it then, sir, that the conference has not developed

an estimate of the shortfall between available resources, either State or Federal and what might be needed to really make significant improvements in reforms. Is there a set of projections, long-range plans of what really might be additionally required to move out as you would like to?

Mr. SHERAN. Nothing quite so precise as that, I would say, Mr. Velde, although Chief Justice Utter may have some views on that when it comes his turn to speak. But the question being raised requires that I emphasize the fact that the Federal funds made available for State court systems should never be considered as Federal funds made available for the essential maintenance of State court systems. That is, and in my judgment always will be, a State court responsibility. The funds made available through LEAA were to make it possible for State court systems to have an added implemental resource to introduce educational programs for the improvement of the administration of the State judicial systems so that a relatively small increment to the total expended on the State judicial systems, but applied effectively wherein and as needed, brought about results that greatly improved the system far beyond in terms of dollars the amount of expenses. Correctly and in the appropriate place as supplemental to and implementary of the support which State legislatures give State court systems to carry out their essential functions and in my judgment, that should be the policy of the future.

Mr. VELDE. Would it be analogous, perhaps, to the situation in 1968 when Congress was trying to set authorization levels for the LEAA program initially, and I believe the authorization figures for the first 2 years were $100 million and $300 million and those numbers were quite arbitrarily drawn up? The rationale was that whatever the needs of State and local criminal justice systems at the time, they were far in excess of those numbers, so they were conservative and the money could be well spent.

Mr. SHERAN. I think so.

Mr. VELDE. These numbers, $20, $40, $60 kind of fall in the same general

Mr. SHERAN. I think so, but with this admonition. I think it is important as we move ahead on what I hope to be the adoption of the legislation that we keep in mind that the role of the Federal Government should be to supplement the basic responsibilities of the States to provide for their State court systems and to do it in ways that are specified in the bill as an increment to this basic support by the State in an effort to elevate the functioning of State court system and improve our capacity to deal with the constant increase in caseloads for which the Federal Government, through its legislation, and the Federal courts, for their decisions, have, in part, brought about.

Mr. VELDE. I take it then, sir, that these figures certainly don't contemplate any permanent reliance on this program on the part of the States to support operational budgets, salaries, and fixed items of

expenses.

Mr. SHERAN. In my judgment, the essentials of a State court system, and I am not prepared to define precisely what would be encompassed by the word essential, but essential to the State court system, should be provided for by the State legislature. I would conceive that the Federal contributions to the effort as being one where the Federal

Government, in recognition of the fact that the administration of justice is entire, that the States are constantly increasing their share of the total load of resolution of disputes and controversy. But this comes about as a byproduct of action at the Federal level. I would see this as a method of implementing-adding to the budgets-funds available to the State court systems, so that they can be elevated and improved and brought beyond performance of the essential functions which the States should provide, in my view and I think that is the tone of the bill as it is presently drafted.

[The prepared statement of Judge Sheran follows:]

PREPARED STATEMENT OF CHIEF JUSTICE ROBERT J. SHERAN

The background from which I am privileged to make this statement in support of the State Justice Institute Act of 1979 includes 3 years of service as chairman of the State Planning Agency for the State of Minnesota which was established to implement the Safe Streets Act of 1968 as well as service as chief justice of the State of Minnesota since 1973.

We begin with the fact that remarkable improvments in the administration of justice through State court systems were made possible by Federal grants through the Law Enforcement Assistance Administration. It is my personal conviction that State court systems wolud have floundered in the face of the massive increases in litigation in recent years were it not for these improvements. Even so, the experience of the past 10 years has surfaced basic conceptual difficulties undergirding the Safe Streets Act which makes this form of Federal cooperation less effective than it could and should be.

To begin with, the Safe Streets Act was designed as a Federal effort to assist States to combat crime. It conceived of the process of investigation and apprehension, of trial and adjudication, of corrections and imprisonment as the necessary and undifferentiated components of an inseparable process by which crime is controlled without intrusion upon the rights of citizens. In doing so, the separate and sometimes conflicting responsibilities of the executive and judicial branches of Government (important at the State level as well as at the Federal level) were obscured. The tendency of this subordination of the principle of separation of powers is to weaken the judicial function as a check on the executive department's performance in the detection of and punishment for criminal behavior.

Secondly, at the State level the judiciary was placed in competition with executive branch agencies (police and corrections) for a fixed amount of Federal support. The judiciary, by reason of the necessary limitations on its actions in the political arena, was not willing or able to compete effectively, particularly when final decision as to allocation of funds was made by a commission dominated by executive branch appointees. The fact that this difficulty was ameliorated by the 1976 amendments making possible the establishment of judicial planning agencies having substantial authority in the allocation of funds for judicial improvements demonstrates, in my judgment, the initial weakness of concept.

Next, at the Federal level policy is set by an executive branch agency (the LEAA) lodged in the Department of Justice. Although the experience of State judiciaries with the administration of the LEAA has been most cordial, this has been due, I believe, more to the individuals involved than to the soundness of underlying concept. It is anomalous and unwise for the Department of Justice, a part of the executive branch of the Federal Government, to exercise authority significantly affecting State judicial systems of a kind and to a degree which Congress does not countenance with respect to the Federal judiciary.

Finally, in State judicial systems the exercise of civil and criminal jurisdiction are functionally inseparable. It is not possible to limit efforts to improve State judicial systems to that part of it which is involved with the trial of criminal cases. Conversely, any improvement in the methods by which civil cases are handled elevates our capacity to deal effectively with criminal of fenses. Any effort to give a speedy trial in criminal cases increases the need to improve the overall efficiency of the system so that civil cases can be accommodated as well. Efforts to separate criminal and civil jurisprudence in State