was organized to give them independence so their lawyers wouldn't feel any pressure from any agency and they could represent their clients fully. There is no restriction, in effect, on their lobbying as to legislation. There is developing a good deal of criticism of the Legal Services Corporation, however, in that some lawyers are spending more time lobbying for or against bills, and that was not the intent. That, of course, is a matter that has got to be studied and I'm sure when it comes up again, we'll do it. It's a hard line of demarcation. Your suggestion would be that as it relates to the independence of the State judiciaries; that's worth exploring and seeing thoughts of people on. Mr. McConnell, do you have any thoughts on it? Mr. McCONNELL. No, sir; it seems to me, Mr. Chairman, that the act would permit legitimate activity in support of court improvement programs that require legislative action, because the specific restrictions are on the personnel of the Institute. It would ordinarily not be people employed by the Institute who would be appearing before State legislatures. Moreover, Institute personnel would not be precluded from testifying on the request of a legislative body with regard to matters affecting the administration of justice. So to the extent that political activity was necessary, and it frequently is necessary in the States to bring about improvements, that would adequately be handled, not by the people who are funded by the Institute directly or indirectly, but by the court officials, bar association leaders, and citizens in the State who had a direct interest in the programs that were being presented to the State legislature, or local legislature. So I don't see any problem with the act as it is. Senator HEFLIN. There is perhaps an analogy to the Canons of Judicial Ethics that limit judges' activities dealing with legislation. They allow them to deal with those matters designed to improve the administration of justice. Mr. Rosenberg, do you have any thoughts on this? You have previously expressed some on it. Mr. ROSENBERG. Yes; I don't have any problem at all with the provision that Mr. McConnell referred to. Not only can personnel of the Institute testify at the request of a legislative body on appropriate matters, but also one of the specific exceptions to the ban on testifying or taking part and influencing the passage or defeat of legislation, is in connection with legislation or appropriations directly affecting the activities of the Institute. So that as far as the Institute's own activities are concerned, and I suppose that means the areas of funding in which the Institute engages, there is no ban on activity by personnel of the Institute. The problem I have on the political side is the restriction which appears on page 60. It says that the Institute, in making grants and contracts, shall insure that all personnel engaged in grant or contract assistance activity, supported in whole or part by the Institute, refrain while so engaged from any partisan political activity. Now I see the virtue of a provision like that, but it neglects the fact that some of the judges or clerks who will be recipients, indirectly at least, of the grants from the Institute or contract with it, may have to run for reelection, and then they have to do so along partisan political lines. Although I don't especially favor their having to do that, on the contrary I don't think they should be penalized from accepting contracts or awards from the Institute, if they happen to be in States that require that they run for reelection along partisan political lines. Senator HEFLIN. Mr. Levin, do you have any thoughts on that? Mr. LEVIN. Yes; I think I'm in the position, Mr. Chairman, of agreeing with both of the preceding speakers. I think it would be highly desirable to write in the kinds of exceptions to which you referred earlier which we have in connection with judges, the "Code of Professional Responsibility," and make it very explicit that those which relate to judicial administration, improvement of the courts, and so on is excepted. I also think that probably the last point Professor Rosenberg just made, probably there should be an exception for running for judicial office, and here, too, other activities that are directly related to the improvement of justice. I think if it's done that way it would take care of all the problems involved. Senator HEFLIN. Would any of the witnesses like to respond to the testimony of any other witness, or regarding any issue that has been raised? Mr. McConnell? Mr. McCONNELL. Mr. Chairman, there are two things that I would like to comment on that I haven't previously, and they both are suggested by Professor Levin's statement. The one area where the National Center is not fully analogous to the Federal Judicial Center is in the area of education. He mentioned in his remarks that education is an area that is extremely important and one of the best ways of bringing about improvements and spreading ideas, hopefully the best ideas. The Federal Judicial Center has been very active in that area. The National Center, while it has done some work of an educational nature, it is not our area of concentration, because there exists another organization that concentrates primarily in that field, and that is the National College for the Judiciary in Nevada. If there is one change that I would suggest in the act, it is that in the priorities that are designated, a provision be made that that organization also receive some priorities so that their work would receive the recognition it deserves. The other subject I would like to comment on is a matter that Professor Levin also referred to, that is, cooperative ventures between the State and Federal courts. This specifically is provided for in this proposed act. At the present time there is a good deal of cooperation that goes on because the respective staffs of the Federal Judicial Center and the National Center and other organizations that have comparable expertise often participate in a consultative way in each other's projects, and, as experts, keep themselves apprised of what is going on in the field in the Federal or State courts, as the case may be. But it is very difficult to have joint efforts because of the difference in sources of funds and the different objectives. LEAA projects, for example, do not permit working in the Federal courts. I think under this act you would be able to develop not only more cooperative projects, but have an efficiency in some of the areas that he has referred to, particularly in the area of technology and many of the procedural areas where the problems are the same, and probably the solutions are similar. Senator HEFLIN. Are there any other comments of any of the witnesses on anything that has been raised, or not raised? That covers a pretty broad subject. Well, if not, then we'll conclude this hearing at this time. [Whereupon, the subcommittee adjourned, subject to the call of the Chair.] STATE JUSTICE INSTITUTE ACT OF 1980 WEDNESDAY, MARCH 19, 1980 U.S. SENATE, SUBCOMMITTEE ON JURISPRUDENCE AND GOVERNMENTAL RELATIONS, The subcommittee met at 9:36 a.m., in room 5110 of the Dirksen Also present: Arthur B. Briskman, subcommittee chief counsel, and Richard Velde, minority counsel; Ken Feinberg, counsel; Eric Hultman, counsel to Senator Thurmond, and Michael Remington, counsel, House Judiciary Committee. OPENING STATEMENT OF SENATOR HEFLIN Senator HEFLIN. Today this subcommittee resumes hearings on the proposed State Justice Institute. This is the third hearing to be held on the subject, the first two having been held last fall. In the first two hearings, we received compelling testimony on the need for such an institute to provide financial and technical assistance to the various State court systems throughout the United States. Based on this testimony, as well as the recommendations from various organizations, I introduced the State Justice Institute Act of 1980, Senate bill 2387, for the establishment of such an institute. I am glad that this legislation has broad-based support on both sides of the aisle. The reason for providing financial assistance to State courts is basically twofold. The first has to do with the changing role of judges generally. Earlier in this century, there was much argument as to whether or not a judge's function included an obligation to see that cases in their courts moved toward disposition in a regular and an efficient manner. Today, however, problems of administration have taken their place alongside problems of adjudication as primary responsibilities of judges. Everyone has come to acknowledge that today's judges have a duty to insure that their cases do not simply languish on the vine, but instead move to a conclusion with as much disnatch and economy of time and effort as practicable. This along with a heightened interest in continuing legal education generally have resulted in thousands of judges attending intensified orientation and refresher courses offered by such organizations as the National Judicial College and the American Academy of Judicial Education. Second, State courts have become the primary focal point of justice in the United States. Our expectation of State courts and the burdens we have placed upon them through congressional as well as court actions have increased significantly in recent years. Today, State courts decide approximately 98 percent of all law suits tried. I asked Mr. Briskman about this and he said that figure was taken from testimony that had been given in previous hearings. When you stop and think about it, it is a most unusual figure in regard to where the litigation is in the judicial system of this Nation. It is thus appropriate to provide financial and technical assistance to State courts to insure that they remain strong and effective in a time when their workloads are increasing as a result of Federal policies and decisions. In this regard, it should be noted that present Federal policy has allowed state court systems to receive Federal funds through the Law Enforcement Assistance Administration. I think it is wise to note that the people of America are interested in seeing that the Federal Government assist in providing the quality of justice just as well as they are providing quality in health plans and health programs and in education. There are, however, inherent separation-of-powers problems when a Federal executive agency is allowed to designate the programs State courts ought to follow by directly providing Federal assistance. LEAA places primary emphasis on the Nation's crime problem. It was only through administrative interpretation and later by congressional enactment that State courts have been able to receive Federal support under the banner of improvement in the administration of criminal justice in the States. This overlooks the fact, however, that in most courts the criminal and civil functions are inseparable. As a result, it has been difficult. for courts to undertake the kind of broadly based improvements that must be undertaken if the total justice system, criminal as well as civil, is to function as it should. Today, Federal assistance to State courts faces yet another obstacle. With our country facing the severest economic crisis since the Depression, the Congress and the administration must find ways to decrease Federal spending and balance the Federal budget. Recent newspaper accounts suggest that the President is considering reducing the Justice Department's 1981 budget by as much as $165 million. As Attorney General Civiletti testified before the Judiciary Committee last week, if such a budget reduction occurs, much of it will have to come from the grant program of LEAA. While I am for balancing the Federal budget. I cannot agree that LEAA should be emasculated. In my judgment, the LEAA program has been a tremendous benefit and has had a tremendous impact on this Nation and should be continued. But I am afraid that LEAA is in trouble. We must not jeopardize the quality of justice that Americans receive in our State court systems because of the important Federal interests involved. We must not let a lack of funds impair the ability of State courts to improve the quality of justice that they dispense. The concept of a State Justice Institute has been endorsed by such organizations as the Conference of Chief Justices, the Appellate Judges Conference, the Council of the American Bar Association Division of Judicial Administration. Also, the State Justice Institute Act was introduced in the Houses by the Honorable Robert W. Kastenmeier, chairman of the House Subcommittee on the Courts. He was |