STATE JUSTICE INSTITUTE ACT OF 1979 MONDAY, NOVEMBER 19, 1979 U.S. SENATE, SUBCOMMITTEE ON JURISPRUDENCE AND GOVERNMENTAL RELATIONS, The subcommittee met, pursuant to notice, at 9:35 a.m., November OPENING STATEMENT OF SENATOR HEFLIN Senator HEFLIN. This hearing will come to order. Today this subcommittee resumes hearings on a proposesd State Justice Institute Act. As I indicated on the opening day of testimony on this proposal, the quality of justice in the United States is largely determined by the quality of justice in our State courts. In fact, we heard testimony that it is in the State courts that 98 percent of all cases are tried. If, then, the overwhelming majority of our citizens turn to the State courts for the protection of their constitutional rights and the redress of their grievances, then our consideration of legislation to assist State courts, is one of the most important undertakings of the Judiciary Committee in recent years. The burden placed on our State courts has increased significantly in recent years. Decisions of the U.S. Supreme Court, the enactment of wide-reaching social legislation by the Congress, and the diversion of cases from the Federal courts, for example, have taken their toll on State court dockets and the workload of State judges and court personnel. As a result, we are investigating whether it is appropriate, and, if so, by what means, for the Federal Government to provide financial and technical assistance to State courts to help alleviate some of the problems which these actions at the Federal level have caused. The committee has already heard compelling testimony on the need for a State Justice Institute from a panel of distinguished members of the bench and bar representing, among other groups, the Judicial Conference of the United States, the Conference of Chief Justices, and the Conference of State Court Administraters. We are fortunate to hear today from the Honorable Maurice Rosenberg, Assistant Attorney General, Office for Improvements in the Administration of Justice, U.S. Department of Justice; Mr. Edward B. (45) 60-753 0 - 80 - 4 McConnell, executive director of the National Center for State Courts; Mr. Leo Levin, director of the Federal Judicial Center; and the Honorable Janie Shores, associate justice, Supreme Court of Alabama. All of our panelists have distinguished themselves in their respective fields of law and the administration of justice. We welcome each of you, and look forward to hearing your valuable comments. Professor Rosenberg, if you would, we'd appreciate it if you begin. would STATEMENT OF PROF. MAURICE ROSENBERG, ASSISTANT ATTORNEY GENERAL, OFFICE FOR IMPROVEMENT, DEPARTMENT OF JUSTICE Professor ROSENBERG. Mr. Chairman, thank you very much for the opportunity to be here and to discuss with you this very important proposal for a State Justice Institute. I'm going to be speaking here on my own behalf only, and not as a representative of the Department of Justice or the Office for Improvements in the Administration of Justice. I should say that the proposal has not had time to have a sufficient airing in the Department because it's moving along, as you know, at the same time that many other proposals and items of legislation are moving along that affect matters that are interwoven with the proposal for a State Justice Institute. As a result, I'm going to express only my own views. I have a background in connection with this matter that emboldens me to offer these thoughts. The background goes back more years than I care to recall. I believe that I came into the field of judicial administration about 1955. Since then, I have seen the field of judicial administration move from a sort of backroom subject of discussion among eggheads-and very few eggheads at that-and a few judges who were out in front of the rest, to a first-line subject of importance in the delivery of justice to the people of this country. The rise of judicial administration as a legitimate respectable, and necessary aspect of the work of judges is one of the phenomenons of the last generation. It has placed judicial administration alongside adjudication as a respectable first-line activity of judges. Another tendency has developed at the same time that is important for the discussion that we're having this morning, that it is that judicial education has come of age. We have come to recognize the importance of education of judges, that is, if orienting them to their work soon after they come to the bench, and of informing them later of what they ought to know concerning new developments in the law, better techniques for carrying out their responsibilities, and a better appreciation for some of the broader streams that are flowing in the fields of law and judicial administration. All these matters have come to the fore also in the last generation. The States have moved unevenly in entering the field of judicial administration and in their interest in education for judges. Some States are well-financed, well-supported and have high morale in these respects, and they have moved forward very rapidly. Other States lag. They lag in respect to their interest in judicial administration, the resources that they have to devote to research and development in the field, and also in what they are able to do about providing their new judges with opportunities for orientation and for refresher courses or new-developments courses for judges who have been on the bench for a time. These factors make it very difficult to bring the lagging States into line with the States that are in the forefront. I say they make it difficult. What I mean is that when the States move unevenly-we were searching for a metaphor, and the only one that's occurred to us to far, although I think we can improve on it as time goes by-is a bunch of jumping frogs. Now we've got 51 jumping frogs out there, and some of them are jumping rapidly toward the finish line. Those are the States that are in the forefront of modernization and improvement in these fields. Then there are States that are jumping sideways, and some of them seem almost to be jumping backwards in these respects. When groups of the type that I call good justice groups sit down. and wonder how we can improve judicial administration and judicial education in this country, we face difficulties when we try to deal with. 51 separate sovereignties. I don't suppose that the Conference of Chief Justices can assert very much influence or be very effective in persuading laggard State X or State Y to improve. The chief justices will have no special power to persuade the legislatures of those States to move into the modern age in these matters. That is, there is not in existence today any good forum into which the people who have thought about this problem in nationwide terms can take their case and be confident it will get legislative attention. However, once Congress takes an interest in it, the Conference of Chief Justices and other groups that are either national in their organization or national in their interest, can come to Congress and make a much better case before that body because it is charged with concern for the entire national system. As you rightly say, Mr. Chairman, the quality of justice in this country is largely a function of the quality of justice at the State court level. The State courts handle 95 to 98 percent of the cases that come to trial in the courts. So at least in the access to justice field, we can say that as the States go, so goes the Nation. That it seems to me, is one of the factors that gives Congress a particular interest. Congress itself has not been laggard about vindicating that interest. Over the course of the past decade, the estimates are that somewhere between $225 million and $325 million has been awarded by Congress through LEAA to projects that are called court funding projects. The meaning of that term varies a great deal. As LEAA uses the term, I believe it is an acceptable and respectable definition of how much of the national fisc has found its way to improving the State courts. The results of that investment have not been trivial. I think that it has made a big impression on the level of justice in the State court systems and in the level of appreciation for judicial administration activities and judicial education activities. The National Center for State Courts, for example, has been funded in large partin very great part as I understand-by grants that have come from LEAA. When Congress has already invested one-quarter of a billion dollars or more in this problem over the last 10 years, it may seem unnecessary to talk about the Federal interest in the question. In the statement which I have prepared and submitted, however, and which I am not trying to recapitulate here, I have set forth what I regard to be the five or six elements of Federal interest in this matter and have shown the need in this area for Federal funds. I can't rehearse here those arguments or those factors that seem to me to point very clearly to a proper basis for the Congress to act in this matter. I would only conclude what I want to say on this point by noting that there are several advantages to moving from the situation as it now exists, that is funding of the courts through LEAA, to funding the State courts in the respect we're discussing. There are advantages in funding judicial education, research, and development in the States through a concept, through a mechanism, such as the State Justice Institute Act proposes. First, you avoid a number of problems that otherwise exist. You do not have the fear of Federal domination. If, although the money comes from the Federal Government, State judges and other functionaries nominated by the Conference of Chief Judges and otherwise nominated are then named by the President to serve on a board, these State functionaries have a role in setting policy and in determining priorities for the Institute. You respect the separation of powers concept if you create a State Justice Institute. I think that is terribly important. That is, it is not a good idea, essentially, for an executive branch agency to be the exclusive or nearly exclusive source of funding for an Institute which is to provide resources for upgrading the State courts. Further, the Institute is valuable in allowing an opportunity for judges and others from many States to come together and to learn from one another. It's been my observation over the years that some of the biggest strides forward in the field of judicial administration are made when judges from many States, some in the forefront of affirmative and positive movements in improvements, come together with judges from other States, some of which are in the middle and some of which are in the rear ranks. When these people exchange ideas, they can help each other and they do. So I think there is an advantage in creating a mechanism which is essentially in the third branch, or which is dominated by third branch people, which isn't dependent upon an executive branch agency, which allows for State contributions in the sense of ideas and policymaking, and finally, which avoids the difficult problem of what is criminal and what is civil in State justice administration. The present arrangement, through LEAA, because of its pedigree and the Crime Control Act, requires a heavy emphasis on criminal justice as the touchstone for entree into the area of judicial administration. It requires that funds not be given exclusively for civil justice matters. I think that has been a vexing disadvantage of the arrangements that have existed over the past 10 or 12 years. With those disadvantages behind us, and with the advantages that are promised by the State Justice Institute proposal, I think we will be in a position to build on the experience that we've gotten over the past decade through the good work LEAA has brought about with its help, and we'll be able to go forward. Now there are a few things about the bill that I would like to comment on just briefly in passing, and then I will have concluded my remarks. One is that there seems not to be a single title to the bill. If you'll look at page 45 of the version that I have, in the first paragraph the bill is titled the "State Justice Institute Act of 1979." Then, on page 66, it's referred to as the "State Justice Improvement Act of 1979." Second, the question arises as to who is to select the nominees from the public sector. It seems clear from what is said on page 49 that the Conference of Chief Justices is to select names to be submitted to the President, and that additional nominees are to be made by the Conference of State Court Administrators. Then it says in the last line of page 49 that three of the nominees are to come from the public sector. I'm not clear who is to select them. I believe that the bill itself should specify that. On page 56, in the third line, there is a discussion of what is forbidden to recipients of aid through the State Justice Institute, and it is said that the funds may not be used to undertake to influence the passage or defeat of any legislation by the Congress, or by any State or local legislative body. Then an exception is carved as to personnel of the Institute, and that exception is spelled out in the succeeding two clauses. It is not clear whether personnel refers only to employees and staff of the Institute, or whether it also refers to di rectors of the Institute, and I think that should be clarified. There is an overlap between the coverage of this proposed act and the Dispute Resolution Act, which is moving forward in the Congress. I believe that this overlap, if it is intentional, should be specified as intentional. But if it's unintentional, then perhaps the overlap can be cured. I have called attention in my prepared statement to an ambiguity concerning how much politics is too much politics. I won't recapitulate the matter here except to say that sections 105 and 106 of the draft bill that I have seen may go too far in both directions. That is, they may go too far in excluding recipients of Institute funds from activity that may be first amendment protected political activity on the one side. Then on the other side they may allow too much political activity. But that's spelled out in my statement. Finally, I think that it's dangerous to permit use of the funds for bricks and mortar, even though the draft bill limits this to demonstration uses of bricks and mortar, such as for new architectural designs for courthouses and the like. One reason I am concerned about this is because I foresee arguments-and they will not be pleasant arguments about whether a demonstration project is really going to provide a useful and creative design or just demonstrate the ingenuity of the people who have asked for the funds. I think it would be better to keep bricks and mortar and other normal operating expenses of the court outside the range of what the Institute can award in the way of funding to the State court system. Mr. Chairman, I am prepared to answer questions to the best of my ability. Senator HEFLIN. Thank you, sir. Of course, there have been some instances where counties are extremely fragmented, and courthouses or judicial buildings have become terribly deteriorated. In some counties, tax bases, because they are a unit, there is some feeling that they would never be able to really restore their courthouses. I have been in some courthouses in some very small counties that, because |