this as its goal, the Institute, if created, would bring new meaning to something Chief Justice Burger once said: "The state courts of this country are the basic instrument of justice under our system, and this, of course, is the heart of what we call federalism."

Judge CARRICO. Thank you very much.

I am Harry L. Carrico. I am the chief justice of the supreme court of Virginia and I appreciate the opportunity to appear before this distinguished subcommittee to voice my support and the support of my peers throughout the country for the creation of the State Justice Institute.

I endorse wholeheartedly the remarks just made by Justice Utter. He has worked prodigiously on behalf of the Conference of Chief Justices to bring the Institute to this point in its development, and we are indebted to him for his dedicated attention to this project.

We are very grateful in the conference, Mr. Chairman, for the support the Institute proposal has received in this and prior Congresses. These indications of support demonstrate to me a rather solid interest in the worthiness of the Institute's purpose, as expressed in section 3(a)(1) of the bill you are now considering, "To further the development and adoption of improved judicial administration in State courts in the United States.'

May this interest be sufficient to make the Institute a reality at this session of Congress.

It is in the national interest, I believe, to improve judicial administration in State courts. After all, they handle, as has been indicated here this afternoon, from 95 to 98 percent of the cases filed throughout the country. These are not just run-of-the-mine cases. Included are matters of major constitutional and precedential importance involving complex questions of both Federal and State law.

The State judge, almost as much as his or her Federal counterpart, must keep abreast of changes in Federal law, for he or she is called upon regularly to apply some Federal decisional or statutory rule.

We believe, therefore, that it is essential that State judges have opportunities for further study in all aspects of the law.

The Institute could be of material assistance in providing these opportunities. Section 3(a)(2)(B)(5) of the proposed legislation states that the Institute shall "encourage education for judges and support personnel of State court systems through national and State organizations, including universities."

Section 6(a)(5) authorizes the Institute to award grants and enter into cooperative agreements or contracts in order to "encourage and assist in the furtherance of judicial education."

I consider this one of the more significant features of the proposed legislation. I happen to believe that providing judicial education is one of the most pressing needs of the day.

No one should be subjected to a doctor who fails to keep abreast of the latest developments in the field of medicine. Nor should any citizen be required to submit his or her important affairs to a judge who decides cases on the basis of last year's law.

While one's freedom and property may not be as dear as his or her health, the difference is in degree only, and a slight degree at that.

There are, of course, other important features in the proposed legislation, all directed, I believe, to strengthening and improving the State court systems.

In sum, according to the language of section 3(b)(1), the legislation would provide a source of funding to enable the Institute to direct a national program of assistance designed to assure each person ready access to a fair and effective system of justice.

With this as its goal, the Institute, if created, would bring new meaning to something Chief Justice Burger once said: "The State courts of this country are the basic instrument of justice under our system, and this, of course, is the heart of what we call 'federalism.'

Again, Mr. Chairman, I appreciate the opportunity to appear and to express my gratitude to the committee for its support of this bill. Mr. KASTENMEIER. We are indebted to you, Chief Justice Carrico, for your appearance here and your amplifying comments.

May I ask you to define the term "State court." Are we talking about any court of a State that would be a court of record or is there any necessity for defining further what courts are to be included?

Judge CARRICO. I would hope, sir, the Institute would not be limited or confined to courts of record. We have a three-tiered court system in Virginia. On the lower level is the district court, with one part devoted to the trial of civil and criminal matters and the other to juvenile and domestic relations cases. Then there is the circuit court, which is the trial court of records, and at the top is the supreme court.

It is with the courts at the lower level that the public has the greatest contact, and for many people the only contact with a court they ever have in their lives. We are undertaking at the moment, for example, a study to determine the feasibility of creating a new court in Virginia handling only family matters. As things stand now, there is a concurrence of jurisdiction between the juvenile and domestic relations courts and the circuit courts in domestic relations matters, which produces a yo-yo effect. Litigants are shifted backward and forward between the two courts at great expense and prolongation of litigation of a type that ought to be ended as early as possible.

I foresee the Institute making funds available to national organizations involved in family court matters, juvenile and domestic relations matters, that could in turn provide the necessary studies to help us to come to a determination on the feasibility of instigating a family court.

So I would hope that the services of the Institute would be available to any court in the State system of justice.

Mr. KASTENMEIER. I have one or two other questions, but I would like to yield first to my colleagues.

The gentleman from California, Mr. Moorhead.

Mr. MOORHEAD. I want to join our chairman in thanking you both for being here today.

If this legislation would become law, what issues do you anticipate would be priority items for the State Justice Institute?

Judge UTTER. I would think at least two of the issues addressed by acts of this Congress. The issue of career criminals, how they are handled, is of great importance. Our concern is not that those issues not be addressed, but that they be addressed in a way that can be effectively processed by the States.

The whole area of product liability, the massive number of cases and the inability of those cases to be resolved in the courts, is of great interest, not only to the Federal Government, but to State courts as well. Our concern, again, is not that that issue not be addressed, but that it be addressed in a way that preserves the integrity of the State system without overburdening the Federal system as well.

I would hope that if it is the will of Congress that diversity jurisdiction be removed from the Federal system, we could effectively find a way to handle those cases in State courts. Our courts have expressed a willingness to not only address that problem, but to take over that responsibility. It cannot be done lightly, as you know, Mr. Congressman. For the State of California to assume the diversity cases that are now before the Federal courts in your State, would be a massive burden.

Mr. MOORHEAD. They are jammed already.

Judge UTTER. They are, sir. But that is the type of issue, I think the type of priority issue that I would hope this State Justice Institute would enable us to be able to sit down with concerned Members of Congress and address ways in which we can both help each other.

The other issues, the administrative ones are multiple and let me just run over the list quickly without commenting exhaustively on them. The problems of selection and removal of judges, how that can be done effectively is always an issue of proper judicial administration.

⚫ Education and training was commented on by Chief Justice Carrico. The question of meeting Federal law with Federal funds that are provided to the State courts is a continuing issue clogging State courts and we need to address how that can be done effectively.

Court organization and finance, we need to be more sophisticated in the way we address those problems.

Court planning and budgeting, court management statistics, court delay. The question of judicial performance in the States; how do you rate what kind of job a judge is doing in a way to both help him if he can be helped, and remove him if he should be removed.

Court rules, responsiveness to public needs, access to courts, public education, all these are areas that I think the State Justice Institute would address.

Mr. MOORHEAD. You know, when we consider these diversity bills we get from time to time in this committee, and there is always one that is introduced, there is one major reason sitting behind that opposes it, and that is that most lawyers want to be able to shop for a court.

Judge UTTER. Of course.

Mr. MOORHEAD. The second argument that is given that the quality of the State courts-and speaking for California, I think the quality is extremely high, as I am sure it is in the States in which you gentlemen preside as chief justices and many of the other larger States. There is some problem, I assume, in some of the smaller jurisdictions, but it would seem to me that if we did get the State Justice Institute Act adopted, it would have a tendency to raise the standards in all of the States and maybe do away with the argument that has been traditionally used.

Judge UTTER. That is our hope. That is our hope and I heartily concur with it.

Mr. MOORHEAD. You probably know that most of us on this subcommittee have already sponsored the legislation. We think that something should be done of this kind and we certainly hope that we can work together with you as we consider the legislation on any amendments, any ways that the legislation can be made more beneficial or effective.

Judge UTTER. Thank you.

Judge CARRICO. Thank you.

Mr. KASTENMEIER. The gentleman from Ohio, Mr. DeWine.

Mr. DEWINE. No questions, Mr. Chairman.

Mr. KASTENMEIER. I just have one or two questions. I know Justice Utter has been through this before and most of the basic questions have been asked.

One of the functions that the Institute could serve is to voice the collective interests or problems confronting State judicial systems generally. I think you have indicated that.

In what fashion would it be superior to the representations that you make on behalf of the Conference of the Chief Justices of the States?

Judge UTTER. We would like to assume that the Conference of Chief Justices speaks for everyone and like to feel that the world focuses on us. Unfortunately, if you speak to the trial judges and the court of appeals judges and the court administrators, the juvenile court judges and the probate judges, they are quick to point out that while we do have the final authority in the States, we do not have their complete perspective on the problems.

I think that is one of the things, Mr. Chairman, that the State Justice Institute would be able to perform that would differ greatly in scope from what the Conference of Chief Justices does. As pointed out in our discussions and in our reports, the basis of membership on the Board of Directors of the Institute is a broadbased one. It would include members, I would hope, from all levels of the trial

courts.

I think we cannot overlook that it is the chief justices who will have to carry out the policies in the States and that is an important distinction to make. The act will not work if it goes in opposition, in effect, to what the chief justices feel needs to be done in the States, because they are the ones who are responsible to the executive branch and to the voters for the execution of policy.

But the Institute gives a much broader base from which to enunciate that policy than the Conference does. I yield to my colleague, Chief Justice Carrico, on that.

Judge CARRICO. I think that is the complete answer to the question. Unless all levels of the judiciary in the States feel themselves a part of this, it, of course, will not succeed. I think that in the way the Institute is proposed, both the lowest and highest judge can have a say in the policies that will be voiced through the Institute. I think that is very important.

Mr. KASTENMEIER. As a followup on that, I believe the legislation contains what might be commonly known as an antilobbying provision and I am not that sanguine about what precisely the language is. Would that run counter to the function we are talking about in terms of enabling the Institute to speak with a single voice as to concerns of the problems of the State judicial systems?

On page 20, a restriction on activities of the Institute, section 8(a)(3) says "The Institute shall not undertake to influence the passage or defeat of any legislation of the Congress of the United States or by any State or local legislative body, except," and then there are some exceptions.

I am wondering when you consider that language if it is unduly restrictive in terms of your concept of the operation of the Institute.

Judge CARRICO. When I read that, Mr. Chairman, I thought it at first a curious provision, but then when I thought about it, I could see the merit of it. As you indicate, there are exceptions. They are very broad exceptions and would, I believe, permit the personnel of the Institute to do those things that it would be set up to do.

I have always wondered where lobbying begins and where it ends because those of us in the State judiciary have to have certain contacts with our State legislatures. I would hate to be accused of having lobbied. I look upon lobbying as standing in the halls of our State capitol and buttonholing members of the legislature as they go by and importuning them for a raise effective the beginning of the next biennium.

But I think it is perfectly proper under the Canons of Judicial Ethics for judges to appear before legislative committees, legislative groups, to support and urge the passage of any measure that aids in the administration of justice. I would hope that the interpretation put on this provision would permit that same activity, but would discourage, in fact, prohibit, the sort of buttonholing activity we look on as perhaps not being consistent with a judicial group.

Mr. KASTENMEIER. Well, I think you are undoubtedly correct. The exceptions are broad and ought to permit appropriate testimony, appearances, or communications. However, you might review that just to make sure that it is not going to prove to be an unanticipated burden in some respect in terms of inhibiting what the Institute really ought to be doing or ought to be involved in.

Judge CARRICO. Could we communicate our views to the subcommittee if we feel the provisions are too restrictive?

Mr. KASTENMEIER. Yes; please, by letter to the subcommittee.
Judge CARRICO. By letter, right.

Mr. KASTENMEIER. We would encourage you to do so.
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