Separate but

Subservient
Court Budgeting in the
American States

Carl Baar
Brock University

A Project of the National Center for State Courts

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 Library of Congress Cataloging in Publication Data

Baar, Carl.
Separate but subservient: Court budgeting in the American states.

"A project of the National Center for State

Courts."
1. Courts —United States—States — Finance.
I. National Center for State Courts. II. Title.
KF8732.5.Z95B3 347'.73'13 75-24563
ISBN 0-669-00186-4

Copyright © 1975 by D. C. Heath and Company

Reproduction in whole or in part permitted for any purpose of the

United States Government.

All rights reserved. No part of this publication may be reproduced or

transmitted in any form or by any means, electronic or mechanical, including
photocopy, recording, or any information storage or retrieval system, without
permission in writing from the publisher. The provision of the United States
Government constitutes the only exception to this prohibition. This project was
supported by Grants Number 71-DF-99-1089 and 73-DF-99-0002
awarded by the Law Enforcement Assistance Administration, U.S. Department
of Justice, under the Omnibus Crime Control and Safe Streets Act of 1968, as
amended. Points of view or opinions stated in this document are those of the
author and do not necessarily represent the official position or policies of the
National Center for State Courts or the U.S. Department of Justice.

Published simultaneously in Canada

Printed in the United States of America

International Standard Book Number: 0-669-00186-4

Library of Congress Catalog Card Number: 75-24563

 Contents

List of Tables vii

Preface ix

Introduction 1

Chapter 1 Internal Organization of the Budget Process 5

State-Local Distribution ofJudicial Funding 5

State Funding of Judicial Activities 7
Organization of Budget Processes 11
Role of Budget Processes 20

Chapter 2 External Relations in the Budget Process: The

Executive Branch 25

Executive Branch Authority 25

Executive Branch Practice 31
Models of Executive Treatment 40
The Item Veto 47
Executive Supervision and Judicial Dependence 54

Chapter 3 External Relations in the Budget Process: The

Legislative Branch 61

Patterns of Legislative-Judicial Relations 61

Outcomes of the Legislative Process 77

Chapter 4 External Relations in the Budget Process: Ex-

penditure Control 95

Accounts and Audits 95

Allotments 102
Transfers 107

Chapter 5 State and Local Funding: Trends and Comparisons 115

The Limited Trend toward State Financing 115

Difficulties in Obtaining County Funding 121
Fiscal Independence of County-Funded Courts 126
Other Locally-Funded Courts 133
Using the Budget to Manage and Plan 136
Chapter 6 The Separation of Powers and Judicial Budget
Processes 143

Inherent Powers Lawsuits 143

Components of the Separation of Powers Principle 144
The Separation of Powers as a Limitation on
Executive and Legislative Action 156

Chapter 7 Conclusions and Recommendations 163

External Authority 163

Internal Responsibility 167
External Relations 169
Internal Relations , 170

Appendix Selected Statutory and Constitutional Provisions 177

Notes 183

Index 207

About the Author 211

 List of Tables

1-1 State Court Systems, Ranked by State Share of Total State-

Local Judicial Expenditures, 1971-72 6
1-2 State Court Systems, Classified by Breadth of Activities
Covered in State Judicial Budgets 10
1-3 Budget Organization of State Court Systems, Classified by
Degree of Internal Judicial Branch Coordination 13
1-4 Cross-Tabulation of State Judicial Budget Organization, by
Breadth of Activities Covered in State Judicial Budgets 14
2-1 Statutory Authority of State Budget Agency over Judicial
Branch 27
2-2 Judicial Budget Submission and Review under State Law 28
2-3 Statutory Limitations on Executive Budget Officials Related
to Whether Executive or Legislative Officials More Likely to
Alter Judicial Budget Requests 38
2-4 Treatment of Judicial Budget Requests by Executive Branch:
Four Models 41
2-5 Treatment ofJudicial Budget Requests by Executive Branch 42
2-6 Amount of Time Spent in Judicial Budget Review by the
Executive Branch 45
2-7 The Application of Gubernatorial Item Veto Power to
Judicial Appropriations 50
3-1 Legislative Responses to Judicial Budget Requests 63
3-2 Degree of Difficulty in Obtaining Legislative Approval for
Judicial Branch Funds, as Evaluated by Legislators and State
Court Officials 79
3-3 Method of Consideration of Judicial Budget Requests by
Legislature, Related to Degree of Difficulty in Obtaining
Judicial Branch Funds 82
3-4 Appearance of State Court Administrative Officials at Com-
mittee Hearings, Related to Degree of Difficulty in Obtaining
Judicial Branch Funds 85
3-5 Extent of Discussions between Legislative and Judicial
Branches, Related to Degree of Difficulty in Obtaining
Judicial Branch Funds 87
3-6 Direction of Communication between Legislative and Judi-
cial Branches, Related to Degree of Difficulty in Obtaining
Judicial Branch Funds 88
3-7 Degree of Difficulty in Obtaining Executive Branch Approv-
al/Endorsement for Judicial Branch Funds, Related to De-
gree of Difficulty in Obtaining Legislative Approval for
Judicial Branch Funds 89
3-8 Extent of Executive Branch Changes in the Judicial Budget,
Related to Degree of Difficulty in Obtaining Legislative
Approval for Judicial Branch Funds 90
3-9 Percentage of State Court System Expenditures Funded by
State Rather than Local Governments, Related to Degree of
Difficulty in Obtaining Judicial Branch Funds 91
3-10 Breadth of Activites Covered in State Judicial Budget,
Related to Degree of Difficulty in Obtaining Judicial Branch
Funds 92
3-11 Degree of Budget Coordination within the Judicial Branch,
Related to Degree of Difficulty in Obtaining Judicial Branch
Funds 93
4-1 Frequency of Post-Audit of Judiciary, Related to Whether
Auditing Function Performed by Executive or Legislative
Branch 98
4-2 Allotment Authority over Executive Agency and Judicial
Branch Appropriations, by Numbers of States 106
5-1 Judicial Expenditures Funded by State Rather than Local
Governments, as Percentage of Total Judicial Expenditures in
Each State, 1968 to 1972 116
 Preface

To acknowledge properly the many individuals who contributed to the

development of this book requires that the preface review briefly the history of
the project. It began in March 1972 when Justice Winslow Christian of the
California Court of Appeal, the first Director of the fledgling National Center
for State Courts, invited the author to join the National Center as Study
Director for the summer of 1972. The major responsibility of the Study
Director would be to gather data and produce a report on state court
budgetary processes and the separation of powers. Justice Christian conceived
of court budgeting as a useful focus because it combined an important
administrative function with basic questions about the independence of the
judiciary. He was also seeking what he called a "standards monograph"—a
report that could provide an empirical and theoretical basis for future action
by state court systems. While his goal of a monograph series by various
authors has not yet come to pass, the present work has benefitted throughout
from the high intellectual standards and criteria of relevance which Justice
Christian set out and encouraged by gentle prodding and his own example.
As the research focus was defined, it became clear that examination of
court budgeting in the context of executive-judicial and legislative-judicial
relations also presented a rare opportunity for the author as a political
scientist, called upon to examine how all three branches of government deal
with a common problem. Previous studies of relations between branches had
either focused on conflict between the executive and legislative branches, or
between the courts and either of those branches. The arrest of a handful of
men that June, a short distance from the National Center's offices on
Lafayette Square in Washington, D.C., had not yet revealed to the general
public why these interrelations are so crucial to the American constitutional
system. To take advantage of the opportunity to do a systematic comparative
study of the separation of powers in practice, interviews were conducted with
officials in all three branches of the several state and territorial governments.
Budget limitations within the National Center required that interviews be
conducted almost entirely by mail, with personal interviews confined to
officials headquartered near Washington or visiting the capital on other
business. First, a small number of state court administrative offices were
asked to prepare lengthy memoranda in response to open-ended questions.
From there, a series of more structured questionnaires were developed for
state court systems, executive budget officers, legislative appropriations
committee chairmen, and locally-funded courts. Without the cooperation of
so many officials in all branches of government, the validity of the study would
have been sharply reduced.
Two individuals were indispensable in enabling the full research design to
develop and be carried out. Mr. James R. Anderson, then a pre-law student at

ix
the University of Maryland, worked full-time throughout the summer as an
unpaid research assistant. He conducted a search of relevant state con-
stitutional and statutory provisions, assisted in interviewing, tabulated data,
and provided ideas and criticism. Professor Ellen Baar of York University,
Toronto, assisted in research design, questionnaire construction, preliminary
data analysis, and editorial criticism.
The staff of the National Center office and the adjoining offices of the
Federal Judicial Center, as well as court administrators in the Washington
area, facilitated the research. Don Bell and Ernest Short of the National
Center were willing critics of many early ideas. Eleanor Snyder and Vivian
Rodgers did extensive typing and duplicating for the national mail surveys.
Paul Haynes, then an Assistant Court Executive in the District of Columbia
Courts, provided particularly useful input and feedback.
During the following year, after leaving the National Center staff, the
author prepared the first draft of the manuscript primarily on weekends in
Toronto, Canada. It benefitted from colloquia and discussion with colleagues
in the political science department of The University of Michigan. In the
spring of 1973, Justice Christian, having wielded his blue pencil to the extent
he could, suggested that perhaps we had not merely a report but a book. With
this renewed encouragement, the author devoted a major portion of the
following twelve months to expanding the manuscript. During that time, Ellen
Baar reanalyzed part of the survey and provided fresh perspectives on the
material; John Ruhnka of the National Center took the major responsibility
for monitoring the study; and Roanne Leneck and Ruth Acton of York
University handled additional typing. The finished manuscript was read and
criticized by Colorado Court Administrator Harry 0. Lawson, who caught
errors and disputed findings with vigor and care. Jody Straubinger of the
National Center was responsible for typing the revised manuscript, and
Robert H. Weber for publication matters. In the same period, the author's
own understanding of court budgeting was enriched by teaching in budget
workshops and the Court Executive Development Program of the Institute for
Court Management.
In reading this book, it should be kept in mind that the data are based on
conditions reported in 1972. Personnel and practices have changed since then.
The author has tried to note changes in practices in the footnotes, and to
identify personnel in terms of the position held when the data were collected in
1972. Some changes in practice have undoubtedly not been recorded and the
author apologizes to those states for the oversight. Even when more recent
data were available, they have not been used, due to the need to relate 1972
data to 1972 questionnaire responses. In spite of the changes since 1972, the
general conclusions of the study remain valid, and the recommendations
necessary.
The context of this study provides a final irony. While the Law
Enforcement Assistance Administration funded the research carried out in
Washington in summer 1972, its own growing importance for funding the
courts was largely ignored. LEAA operations have raised new questions about
the separation of powers and the independence of the judiciary. The decision-
making processes of the state planning agencies that disburse LEAA funds
could fill a book in themselves, yet they are not covered in the present study.
The questions asked in the following chapters about the traditional resource
allocation processes of state and local government should be asked again
about the SPAs. The importance of LEAA grants may exceed the dollar
amounts involved, because budget conflicts occur on the margins, over
incremental slims and new programs —the same sums that LEAA grants have
contributed in recent years. To the extent that the LEAA granting process has
distorted judicial branch priorities and integrated the judiciary into a larger
system of criminal justice planning, this new development must be watched as
closely as the earlier developments that are central to this study.

Carl Baar

xi
 Introduction

Courts, like all social institutions in the United States, need money to exist
and to function properly. The amount of public money allocated to courts has
become a political issue in many parts of the country. Judges, court
administrators, members of the bar, and the general public often criticize as
inadequate the level of funding for judicial services. In turn, officials
responsible for raising and appropriating taxpayers' money respond that
while the courts are deserving of public support, they must compete with other
public agencies for scarce public resources.
In this debate, little emphasis has been placed upon the processes by which
public funds are obtained and allocated by and for the courts. As a result, the
way in which the court budgetary process does and should operate has rarely
been analyzed.a Very little is known about the similarities and differences in
what state court systems must do to secure appropriations, in how courts are
constrained in the use of public funds, and in the financial tactics used by
courts.' Under these conditions, it is difficult to explain why some state courts
are more successful in obtaining and managing funds than others, and what
effects might derive from reforms in the court budgetary process.
The level of judicial funding has taken on increased importance, because
our conception of what courts are and how they operate is changing. When
fiscal debate was limited to the payment of salary increments to clerical
personnel or the purchase of more or less expensive chairs or carpeting for a
judge's chambers, it might easily be resolved to the statisfaction of both
judicial and appropriations authorities. When fiscal issues involve substan-
tially greater expenditures and raise questions about the relations between the
courts and the larger legal system—the quality of supervision given to
probationers, the effective administration of child support judgments, the role
of the judiciary in new areas of civil litigation, the participation of trial courts
in the beginning stages of the criminal process—the decisions of appropriat-

a For example the 5th edition of the American Bar Association Section of Judicial Adminis-
tration handbook, The Improvement of the Administration oflustice (Chicago: American Bar
Association, 1971), now superceded by the ABA Standards of Court Organization, gives less
than one sentence to recommendations for the judicial budgeting process. In a discussion of
"housekeeping needs" (p. 23) the report states that a
"qualified court manager should be able to relieve his administrative judge of concern for the
budgeting, accounting, purchasing, personnel, clerical and records management affairs of the
courts."
The Model Act for creation of a state court administrator (p. 174) gives that officer the duty to
"prepare and submit budget estimates of state appropriations necessary for the maintenance
and operation of the judicial branch." But nowhere does the report consider what format such a
budget should take, to whom it should be submitted, or how the review process should be
structured. (A chapter drafted by Edward B. McConnell includes, at pp. 25-26, a list of ten
functions of a court fiscal officer, based on an earlier survey by the American Judicature
Society.)
 ing bodies reach further. The level of court expenditures then reaches
questions of the nature and extent of judicial participation in defining and
doing justice.'
The processes employed in setting judicial funding have also become more
important. For most of their history, the common-law courts of the English-
speaking world were self-supporting, financing their operations from fees and
fines. In fact, the earliest circuit judges of medieval England served as royal
tax collectors.' And in some Southern and border states, the judges of county
courts still exercise fiscal authority generally associated with county boards of
supervisors or commissioners (for example, in Arkansas, Kentucky, and
many counties in Texas, as for example Harris County [Houston], Texas). At
this time, however, there is no state court system that does not increasingly
rely upon appropriations from state and local tax funds to finance its work.
As a result, courts are dependent upon appropriating authorities in other
branches of government for the financial resources necessary to meet the
expanding responsibilities of judicial participation in complex systems of
criminal and civil justice. A court system must thus compete for scarce
resources with the many spending agencies in the state executive branch. And
it must compete without a power base inherently different from those of
executive branch agencies, although such agencies are in theory subordinate
to the appropriating authorities while the judiciary is in theory equal to those
authorities. Courts may therefore be unwilling to do battle over budgetary
matters: they may prefer to accept inadequate funding rather than risk the
compromise of institutional integrity that such a battle may produce.
In this context, the following chapters will examine the judicial budget
process in the states and consider how it should function so as to reconcile two
conflicting political principles—that elected representatives should raise and
allocate public money and that the judiciary should be independent. The goals
of the present study are to describe the budgetary processes of state court
systems, to analyze trends in court budgeting, and to suggest improvements in
the process. More emphasis will be given to the relations between court
systems and appropriating authorities than to the internal organization of
budgeting within court systems. More emphasis will be given to relations with
state-level appropriating authorities than local-level appropriating author-
ities.
While this study ofjudicial budgeting deals primarily with issues of central
concern to courts, public budgeting in general is a current focus of debate
among administrators and policy-makers in both federal and state govern-
ments. Many innovations in the budgetary process, usually associated with
terms such as program budgeting and PPBS (Planning-Programming-
Budgeting System, the hybrid of program budgeting and systems analysis
developed by the federal government during the 1960s), have produced major
rethinking of the role of the budget process in the operation of public
agencies. These developments will also be analyzed in relation to judicial
budgeting: What effects will they have on how the courts are treated in the
budget review process? To what extent can and should court systems
incorporate innovations in public budgeting in their internal
operations?'
In Chapter 1, the similarities and differences in the fiscal organization of
state court systems are considered: How can state court budgets and
budgetary processes be categorized? How can the differences between states
be accounted for?
Chapters 2 through 4 examine the relations between court systems and
external fiscal authorities. First, state budget offices within the executive
branch: What is the range of executive power over court budgets in the various
states? What limits have been developed? What demands do executive budget
officials place upon court systems? What accounts for executive participation
or non-participation, and what are its effects? Second, state legislatures:
What legal and practical limitations exist upon legislative review of judicial
budget requests? What are the patterns of legislative-judicial relations on
budget matters in the various states? What accounts for the similarities and
differences in these patterns? Chapter 4 moves away from budget preparation
and presentation to examine budget execution: To what extent and in what
ways do non-judicial agencies such as executive budget offices, controllers,
and auditors limit how court systems may spend appropriated funds? In what
way does external control of budget execution affect the administrative
independence of the judiciary?
Chapters 5 and 6 examine two trends in court financing and their
relationship to the independence of state court systems. First, the replacement
of local financing of courts by state financing: How widespread is the
development of state financing? What are the effects of state-level financing
on the internal operation of state court systems, and the relations between
courts and outside budget agencies? How and to what extent are the relations
between trial courts and local budget authorities different from court
system-budget agency relations at the state level? Second, the use of court
orders based on the doctrine of inherent powers to force funding authorities to
provide money for court operations: What are the uses and limitations of
budgeting by court order? If orders based on the doctrine of inherent powers
have a function, how is that function compatible with maintenance of the
separation of power?
Chapter 7, the concluding chapter, summarizes findings of the study and
makes specific recommendations for operation of state judicial budgetary
processes.
This book is at the same time a working paper, a study guide, an analytical
document, and an instrument for court reform. It attempts to say something
of value to court administrators, judges, lawmakers, budget officers, and
scholars. To the degree that it is successful, credit will go to those practitioners
who have taken time to respond to numerous inquiries and questionnaires,
and to those whose skill, imagination and effort will be required in the coming
years to assure that the budgetary processes of state courts will contribute to
the job of doing justice.
 Internal Organization of the Budget
Process

The organization and scope of the state judicial budget can be gauged in a
number of ways. Four measures are discussed here. Each one allows us to
group states by their similarities and differences: (1) states vary in the
distribution of judicial funding between state and local governments;
(2) states vary in the range of judicial activities funded at the state level;
(3) state court systems vary in the way their budgetary processes are
organized; and (4) state court systems vary in the roles or functions
performed by their budgetary processes. Variations among states on these
four dimensions make it impossible to speak of state court systems in a
uniform way. We can speak of state-funded and locally-funded courts as well
as state-funded and locally-funded judicial activities, and we can speak of
different ways in which state court systems handle the budget requests of
state-funded and locally-funded courts. In keeping with the distinction made
in the Introduction to this volume, the first two dimensions deal with the level
of judicial funding and the second pair of dimensions deals with the process of
judicial funding.

State-Local Distribution of
Judicial Funding

The United States Bureau of the Census annually surveys state and local
expenditures of criminal justice agencies.' The most recent data available for
judicial expenditures indicate that court activities are predominantly locally
funded. In fiscal year 1971-72, over $1.3 billion was spent by state and local
governments on judicial activites. Over $370 million (28.3 percent of the total)
was spent by state governments; almost twice as much was spent by county
governments; and the rest, by municipalities.' However, some state govern-
ments provided a much higher and some a much lower percentage of judicial
expenditures. Table 1-1 provides the most recently available percentages for
each state.
While state shares range from 11 percent to 100 percent, most states are
concentrated at the lower percentages. Thirty-one state court systems (62
percent) receive less than one-third of their funding from the state.' If one
were to attempt to account for the ranking of state court systems shown in
Table 1-1, the most obvious characteristic seems to be the size of the state's
population. The larger the state's population, the lower the percentage of
state-level funding. Thus, 8 of the nation's 10 largest states (California, New
Yoik, Texas, Ohio, Michigan, Florida, New Jersey, Massachusetts) rank
Table 1-1
State Court Systems, Ranked by State Share
of Total State-Local Judicial Expenditures,
1971-72.

Lowest Percentage State Funding

California 11.5%
Ohio 13.1%
South Carolina 13.4%
Arizona 13.5%
Georgia 15.4%
Washington 17.6%
Florida a 17.8%
Minnesota 18.3%
Michigan 18.8%
Massachusetts 19.4%

Lower Than Average State Funding

New York 20.7%
Texas 20.7%
Tennessee 21.7%
New Jersey 22.8%
Louisiana 24.3%
Indiana 24.7%
Nevada 25.8%
Oregon 26.5%
South Dakotab 27.5%
Nebraska 27.7%
Average State Funding
Alabamac 28.3%
Iowa 28.4%
Montana 28.7%
North Dakota 29.2%
Pennsylvania 30.6%
New Hampshire 30.7%
Missouri 31.3%
Kansas 31.6%
Illinois 32.4%
Arkansas 32.6%

Higher Than Average State Funding

Wisconsin 32.9%
Mississippi 36.0%
West Virginiad 37.9%
Wyoming 42.0%
Utah 45.7%
Virginia 46.3%
Kentucky 51.0%
Oklahoma 53.6%
Idaho 56.4%
Maryland 61.7%
 Highest Percentage State Funding

Maine 62.2%
Colorado 73.7%
Delaware 79.9%
New Mexico 87.1%
North Carolina 91.7%
Vermont 94.9%
Alaska 97.0%
Rhode Island 97.9%
Hawaii 100.0%
Connecticut e 100.2%

Note: States are arranged in quintiles, from least to highest percentage state funding.

Source: The idea of using Census Bureau expenditure data for state-local comparisons by
presenting the data in tabular form derives from an earlier use by the Advisory Commission on
Intergovernmental Relations in its extensive and thorough report, State Local Relations in the
-

CriminalJustice System (Washington, D.C.: U.S. Government Printing Office, August 1971), p.
108.

a A Major court reorganization approved by voters in 1972 did not include full state funding
provisions. See Talbot D'Alemberte, "Florida's Great Leap Forward," 56 Judicature 380-3
(April 1973).
b In 1972, voters approved a new judicial article that includes provisions for full state funding.
c A new judicial article approved by voters in 1973 authorizes full state funding.
d In 1974, voters approved a judicial article authorizing general state funding; implementation
will be completed by 1977.
e Expenditures exceed 100 percent because of inclusion of certain transfer payments from state to
local governments.

amoung the 14 states with the lowest percentages of state funding. Of the 10
largest states, only Illinois (at 32.4 percent) and Pennsylvania (at 30.6 percent)
are not ranked among the lowest third of state-funded court systems. A
number of smaller states are included among those that are largely state
financed.

State Funding of Judicial

Activities

The state-local distribution of judicial funding can be broken down by

activity as well as percentage. While state judicial budgets differ in their
coverage of court system activities from state to state, these differences follow
fairly clear patterns. As a result, it has been possible to develop categories of
state judicial budget coverage by activity,These four categories, which follow,
provide another method for classifying and comparing the 50 states.4
Category I—Limited State Funding

Judicial agencies that are fully state funded include the highest court in the
state, the state court administrator's office, and a state judicial council or
judicial conference.a Intermediate appellate courts are fully state funded.b
All other courts are locally funded, except that all or a portion of the salary
and personal expenses (usually earmarked for travel) of judges in the trial
court of general jurisdiction are provided by the state.

Category II—Itemized State Funding

This category includes all activities funded by Category I states, plus the
payment of additional specified items of expenditure in general or limited
jurisdiction trial courts. Included in this category are (1) states that pay
salaries and travel expenses of both limited and general jurisdiction trial
judges (Michigan, Missouri, Nebraska); (2) states that pay salaries and
expenses of trial judges of unified one-level trial courts (Idaho, Illinois, Iowa);
and (3) states that pay salaries of itemized court personnel such as court
reporters (Kansas, Illinois, Missouri, South Carolina) or secretaries (Florida,
after its court reorganization).

Category III—Mixed General State Funding

Included in this category are all activities funded by Category I states, plus the
funding of all or part of the general operating activities of either general or
limited jurisdiction trial courts. Unlike Category II states, statutory limita-
tions do not confine payment to specific classes of salaries or expenses. In
some mixed systems, the general jurisdiction trial court is entirely state
funded, while the limited jurisdiction trial court is entirely funded at the local
level (South Dakota, pending transition to its new system; Utah; Oklahoma;
Tennessee). In some states, the limited jurisdiction trial courts operate
entirely on state funds, while the general jurisdiction trial court receives only
judges' salaries and travel expenses from the state (Maryland and Maine). In
some states, general jurisdiction trial court budgets may be supplemented by
state funds allocated by formula to the various judicial districts but available

a Only Virginia reports some local expenditure for the Supreme Court, its highest court. Most
but not all states have state administrators, councils, and conferences; those that have such
agencies support them with state rather than local funds. The sole exception is Nebraska;
according to the IJA report, State and Local Financing of the Courts (April 1969), pp. 32-33,
the Judicial Council and Judicial Conference are funded by the bar association.
b There are three exceptions out of 24 states that have intermediate appellate courts: Louisiana,
New York, and Ohio support their intermediate appellate courts with a combination of state
and local funds.
for payment of any budgeted expense (Pennsylvania, New Jersey, New York).
Category III states may also provide full state funding of specialized trial
courts or trial court divisions; for example, the New York Court of Claims,
the Oklahoma State Industrial Court, and the Chancery Division of the New
Jersey Superior Court.'
While Categories II and III are inclusive of Category I, Category III is not
necessarily inclusive of Category II. Thus, a Category III state may fund a
proportion of operating expenses in its general jurisdiction trial court and
fund no other trial courts, while a Categroy II state may pick up the entire
salaries and personal expenses of judges of general and limited jurisdiction
trial courts. While Category II states may therefore provide a higher
percentage ofjudicial funds than Category III states, they are ranked in a way
that reflects the fact that state participation in funding is more tightly
circumscribed by state law in Category II states. It extends to a narrower
variety of activities and is less subject to control by appropriating authorities.
It is more difficult to refuse funds for a judge's salary than to refuse funds for
general operating expenses.

Category IV—General State Funding

All activities funded by Category I, II, and III states are included in this
category, in addition to the funding of all salaries, expenses, and costs of
operation of both general and limited jurisdiction trial courts. Category IV
includes states in which all courts other than the state's principal limited
jurisdiction trial court may still rely on local funds (Rhode Island Probate
Court in Providence and Alderman's Courts in Delaware). Thus, Colorado,
while generally considered a state with "full state financing of its court
system," 5 funds its municipal courts (ordinance jurisdiction) from local
appropriations as does the Denver County Court, which also has municipal
ordinance jurisdiction. Table 1-2 places each state court system in one of the
four categories.
While there are some inconsistencies between the percentage figures for
state funding and placement in state funding categories by breadth of
activity,d both types of categories can provide useful measures of state
involvement. The percentage measure indicates the extent to which states
have been willing in fact to take up the financial burdens of their court
systems. Thus, New York State, placed in Category III, is in the bottom one-
fourth if state financing is figured on a percentage basis. Such a difference

C See also the Massachusetts Land Court; while funded from both state and local sources, the
Land Court receives a lump-sum appropriation from the state.

d See for example Kentucky, which is in Category I although it has a greater percentage of state
funding than 36 of the other 49 states.
 10

Table 1-2
State Court Systems, Classified by Breadth of
Activities Covered in State Judicial Budget

Category I— Category II—

Limited State Funding (17) a Itemized State Funding (12) a

Arizona Florida
Arkansas Idaho
California Illinois
Georgia Iowa
Kentucky Kansas
Louisiana c Michigan
Minnesota Missouri
Nevada Nebraska
New Hampshire Oregon
Ohio c South Carolina
Texas (Wisconsin)
Washington (Wyoming)
(Alabama) b
(Indiana)
(Mississippi)
(North Dakota)
(West Virginia) b

Category III— Category IV-

Mixed General State Funding (12)a Genera/State Funding (9)a

Maine Alaska
Maryland Colorado
Massachusetts Connecticut
New Jersey Delaware
New York c Hawaii
Oklahoma North Carolina
Pennsylvania Rhode Island
South Dakotab Vermont
Tennessee (New Mexico)
Utah
Virginia d
(Montana)

Note: All states are classified by categories applicable in 1972; categorization does not rely on
whether state or local level of government funded capital construction or building maintenance.

a Of the states listed, the first are those for which sufficient current data were available from the
National Center survey and from analysis of current state constitutional and statutory
provisions (corroborated when possible by data from the earlier IJA study); the states in
parentheses are those for which sufficient current data were not available to make an adequate
judgment of categories but which are placed in the category most likely to be applicable.
b Classified prior to transition to general state funding.
c Intermediate appellate courts are funded partially at the local level.
d The Virginia Supreme Court (highest court) is partially supported by local funds.
 11

may reflect the operation of that state's unique system of chargebacks, by

which local governments are charged on a formula basis for court services by
the state, at the same time that the state government is providing a subsidy by
formula to locally funded courts. 6 Conversely, the activity categories may
provide a more complete picture of the extent of state involvement in court
system financing. Each of the four categories defines a different level of state
involvement in ways not reflected by percentage figures alone.'
Neither the percentage dimension nor the activity dimension, however,
compare and contrast states in terms of either the quantity or the inclusiveness
of the total (state and local) expenditures for court services. While they are
outside the purposes of this study, both questions should be subject to
systematic study. Variations in inclusiveness could provide clues about the
ability of a court system to control its internal operations (e.g., whether clerks
are part of the judicial budget) and the interest of the judiciary in coordinating
and supervising court-related services (e.g., whether probation officers are in
the judicial budget and whether public defenders and other legal aid are
included). Data on what is and is not included in state and local court budgets
and expenditures would also improve the ability to compare the funding
efforts of various jurisdictions—that is, which court systems are in fact
getting more financial support. At the present time, these comparisons are
difficult to make even within a single state. In its study of trial court
organization in California, the Arthur Young Company compared the cost
per disposition in each county's Superior Court. Results showed that cost per
disposition decreased as total dispositions increased (greater efficiency
through larger volume), but only up to a certain point. The larger jurisdictions
had a higher cost per disposition than many of the smaller jurisdictions.
Further analysis of the data indicated, however, that the study was not able to
validate this proposition about organizational efficiency. What happened in
California was that the largest counties had courthouse buildings separate
from other county offices, so that building expenses were included in those
budgets and not in the budgets of smaller Superior Courts.'

Organization of Budget Processes

To understand the similarities and differences between state court budgets

requires more than an understanding of the extent of state funding. It also
requires consideration of how state court budgetary processes are organized
and how they operate. The following four categories of state court system
budget organization reflect differences in the degree of internal judicial
branch coordination:

1. Central Preparation, in which the state court administrator's office

develops a single budget for all state-funded court system activities, which
may include input and consultation with the courts and agencies involved.
 12

2. Central Review and Submission (or the method of collation), in which

the state court administrator's office (or staff of the highest state court)
gathers material from all courts and judicial branch agencies requesting state
funds and passes the material to budget officials in the executive or legislative
branch. The extent to which the central judicial administrative office screens
the material—analyzes and alters it—may vary considerably, so that central
coordination may only be formal or may be quite real.
3. Separate Submission, in which different parts of the state court system
submit separate requests for state funds to budget officials in the executive or
legislative branch.
4. External Preparation, in which some part of the state court system has
its requests for state funds prepared by a state fiscal officer in the executive
branch. In states that have partial external preparation, those court budget
requests not prepared externally may still be subject to internal judicial
branch review and joint submission.

Table 1-3 places various states in these four categories. While each of the
categories is mutually exclusive in theory, the size and complexity of some
state court budgets makes clear cut categorization more difficult. To indicate
this state-by-state diversity, some state systems have been placed in more than
one category.
One might expect that differences in the organization of the court budget
process from state to state would be related to differences in the extent of state
funding: the broader the range of judicial activities funded by the state, the
greater the degree of internal judicial branch coordination. Table 1-4 groups
states according to both of these characteristics (organization and breadth).
Those groupings appear to correspond with the expectation stated above: the
more broadly state-funded court systems seem to have more highly central-
ized budget organizations. In addition, relatively strong statistical relation-
ship indicates that a court system that is more broadly state funded is also
more likely to have a more highly centralized budget process. 9 Note also that
the statistical relationship between percentage of state funding and method of
organization is almost as great. A more heavily state-funded court system is
also more likely to have a more highly centralized budget process than a less
heavily state-funded court system.'°
To clarify similarities and differences in state budget organization, certain
state-level court officials were asked to describe the development of their
budgets. Their responses in the following sections illustrate the four categories
of budget organization and indicate some of the major variations in how state
court systems organize to develop requests for state funds.

Central Preparation

Central preparation is strongly correlated with general state funding. Thus, 8

 13

Table 1-3
Budget Organization of State Court Systems,
Classified by Degree of Internal Judicial
Branch Coordination

Category I — Category 2—
Central Preparation(12) a Central Review and Submission (16)"

Alaska Vermont Arizona *New York

Colorado (Hawaii) *California Ohio
Connecticut (Minnesota) Delaware South Carolina
New Jersey (New Mexico) Idaho *South Dakota
North Carolina (Tennessee) Illinois *(Arkansas)
Rhode Island (Virginia) *Kentucky (Kansas)
*Louisiana *(Montana)
Category 3— Michigan (Oregon)
Separate Submission ( 10) a
Category 4 —
Alabama Missouri External Preparation(14) a
*Iowa Nebraska
Maine Nevada *Arkansas *New Hampshire
Maryland *New Hampshire *California *New York
Massachusetts Washington Georgia N*South Dakota
*Iowa Texas
No Response (7) *Kentucky Utah
*Louisiana West Virginia
Florida Pennsylvania *Montana Wisconsin
Indiana Wyoming
Mississippi
North Dakota
Oklahoma

a States marked with an asterisk appear in more than one category. States in parentheses are
those for which responses were not easily classifiable; placement of these should be considered
tentative.

Source: Categorization is based upon information from the following:

I. Responses from 29 state court systems to the first item in the National Center's State-Financed
Courts Questionnaire: "Are budget requests for state funded courts coordinated with the
judicial branch before they are forwarded to the executive or legislative branch?"
2. Additional responses from most of these states to a follow-up question: "If yes or sometimes:
How is this done?"
3. Interviews and correspondence with state court administrators and judges.
4. Responses to questionnaire administered by the IJA in its 1969 study. State supreme courts
were asked for the "particular officer(s) with the judiciary responsible for the preparation of the
budget requests of the judiciary." Eleven of the 14 states in Category 4 were among 13 states
that reported budgets of "trial level courts" were prepared by "an executive financial officer in
the executive branch" (IJA, State and Local Financing of the Courts, April 1969, p. 65).
Certain states were also placed in Category I as a result of data reported in that study.
 Table 1-4
Cross-Tabulation of State Judicial Budget Organization, by
Breadth of Activities Covered in State Judicial Budgets
Breadth of Activities (Broadest —.Least Broad)
IV. General State III. Mixed General II. Itemized State I. Limited State
Funding a State Funding a Funding a Funding a
1. Central
Preparation Alaska New Jersey (Minnesota)
Colorado (Tennessee)
Connecticut (Virginia)
(Hawaii)
(New Mexico)
-o
North Carolina
Rhode Island
c
•$-. Vermont
.N 173, 2 • Central Review
o and
Submission Delaware *(Montana) Idaho Arizona
0 -10
*New York Illinois *(Arkansas)
*South Dakota (Kansas) *California
-o rzs
o •- Michigan *Kentucky
4.)
(Oregon) *Louisiana
i) 4 South Carolina Ohio
ct 3 Separate Sub-
mission Maine *Iowa (Alabama)
Maryland Missouri Nevada
Massachusetts Nebraska *New Hampshire
Washington
4. External Prep- *Kentucky
aration *(Montana) *Iowa *(Arkansas) *Louisiana
*New York (Wisconsin) *California *New Hampshire
*South Dakota Georgia Texas
Utah (West Virginia)
Note: Seven states for which no response was available in Table 1 —3 (Budget Organization) are not included.
a States marked with one asterisk appear in more than one category. States in parentheses are those whose classification is tentative.
 15

out of 9 court systems with general state funding also have central budget
preparation, and only 4 court systems without general state funding are
classified as central preparation systems. State court systems in which central
preparation is combined with general state funding are usually termed unitary
budget systems." Colorado is the most commonly cited example. In August
1972, Colorado Chief Justice Edward E. Pringle told the Conference of Chief
Justices how his state's judicial budget is developed:

In June, the chief judge of each judicial district is sent a computer printout showing
actual expenditures in the past fiscal year, the budget for the fiscal year beginning July
1, and a projected budget for the fiscal year beginning the following July. The budget is
broken down according to activities and kinds of expenditures, as well as by location.
In a three-county district, for example, there would be a separate budget within the
total for each county in the district.
Each chief judge reviews this budget document with his administrator, other
judges, and key personnel and then informs the administrator's office as to what
changes in allocations and why are requested for the fiscal year beginning the
immediate July as well as what additions are required for the following fiscal year
along with the jusitification therefor.
The staff [at the state headquarters] reviews this budget information and then holds
an on the spot budget hearing with each chief judge and anyone else he wishes to be
present. Following these budget hearings, the staff makes adjustments in the current
fiscal year appropriation to the extent these are justified and it is possible to do so. It
also prepares the budget request for the next fiscal year.'

Rhode Island also reported that the "Office of Court Administrator

prepares the systemwide budget, and submits it to member courts for review
and consultation on alterations." Noted the Director of North Carolina's
Administrative Office of the Courts: "'Coordinated' is not a good descrip-
tion of our practice. The request is prepared completely and exclusively by the
Administrative Office.""
While there may be a difference in the degree of lower court participation
in the budget development process in these states, in each one the original
budget proposals that form the basis for internal judicial branch discussions
are prepared by the central administrative staff of the court system. Thus, the
central office sets the base-line budget parameters. The state-funded segments
of the court system may submit justifications for changes in the items defined
in the centrally prepared budget document, but the final definition of budget
priorities is made by the central office.
Central preparation may be possible within state court systems without
general state funding. R. Hanson Lawton, then Iowa Court Administrator,
wrote:

I am presently seeking federal funds to employ a budget and finance officer for the
state judiciary. One of his prime responsibilities will be to develop a unified state
judicial budget. At the present time, the elements of the judiciary fill in executive
budget forms without projections, forecasts and the cost analysis that would be
provided by a budget and finance officer."
 16

Iowa, even after its 1973 transition to a unified one-level state trial court,
retains an itemized state funding system, with most court funding coming
from local sources. Those elements of the court system that are state funded
could still be incorporated into a central preparation process of budget
development, if a state court budget officer provides an initial definition of
court system needs for review by elements of the system.

Central Review and Submission

Central review and submission is associated with limited state funding or

itemized state funding in 12 instances. It is associated with mixed general
funding or general state funding in only 4 instances.e Central review also tends
to be common within the most populous states. Information available for 8 of
the 10 most populous states shows that 5 of these were characterized by
central review and submission.
Included among the states with central review and submission are those
states in which the state court administrative office or the highest state court is
involved in reviewing court-defined needs but not in defining those needs.
Priorities are established by the individual courts, not the body responsible for
coordination. The body responsible for coordination may merely transmit
budget requests without reviewing them or it may use persuasion to encourage
the individual courts to revise their priorities. Nevertheless responsibility for
defining priorities rests with the individual courts rather than with those
responsible for coordination. f
The difference between separate submission, central review and submis-
sion, and central preparation is expressed most clearly in Delaware's
description of its past, present, and future budgetary process:

Each court until recently submitted its own budget to the [executive] budget director
and attended the Finance Committee hearings before the enactment of the fiscal year
budget by our General Assembly.
Since the creation of our office, each court now submits its budget to this office. We
then collate it [and] present it as a package to the Budget Director and the Controller
General as a preliminary review....
We are now trying to formulate a unified budget for all administrative and non-
judicial personnel, who will come under one part of the budget, and the judicial
personnel will be the second part of the budget. Unifying in this manner we feel will
help in the overall administration of the judicial branch as a whole.
At the present moment there are 17 individual budgets, including the 3 county law

C All four of the states with the lowest percentage of state financing (California, Ohio, Arizona,
South Carolina) use central review and submission.

f Compare North Carolina, quoted above, with Kentucky, where requests "originate with Court
of Appeals and court-related state agencies," or Arizona, where coordination occurs by
"liaison between the state-funded courts and the Administrtive Director prior to submission."
(Quotes taken from questionnaire responses.)
 17

libraries, the 3 county Courts of Common Pleas and the Administrative Office of the
Courts, and a budget for each of the other courts from the Supreme Court down to and
including the Justice of the Peace System."

In the past Delaware used separate submission. It now employs central

review and submission and it is moving toward more active review of
individual courts and then perhaps to central preparation.
Central review and submission is also illustrated by Louisiana's budgetary
procedures. As in Delaware, extensive review is not involved:

... the Judicial Administrator assists in the preparation of the Supreme Court budget,
which includes such items as the expenses of the Judicial Council (primarily covering
the operating expenses of the Office of the Judicial Administrator), expenses of the
Judiciary Commission, operating expenses of the Law Library of Louisiana, and
expenses of the Committee on Professional Ethics and Grievances. Each of the four
Circuit Courts of Appeal prepares it own budget and, at an appropriate time,
representatives of these Courts meet with the Judicial Administrator, and the four
budgets are coordinated for submission to the Division of Administration."

The same appears to be true in Kansas, where the "Supreme Court, in

conference, reviews budget requests," and in Michigan, where the Court of
Appeals submits its budget request for inclusion in the Supreme Court budget
request." While the Michigan "judicial budget is developed as the result of a
conference with the Chief Justice, Court Administrator and the Supreme
Court Administrative Officer," that group makes no alterations in the Court
of Appeals requests.g
More review of individual court requests occurs in California. However,
the California state judicial budget process does not constitute central
preparation, because the Administrative Office reviews the needs as defined
by the individual courts and judicial agencies, rather than defining the needs
and providing individual courts the power to review.

The state's judicial budget is included within the Governor's budget-making process
and generally follows the directions given by the Director of Finance to all state
agencies in submitting their requests to him. This process starts in August with a
direction from the Director of Finance indicating the general framework within which
budget requests are to be made and giving the cost increases that are to be included
within the new budget. Within the judicial system the budget requests are formulated
by each court and each agency within those guidelines and any others that are included
with Judicial Council procedures. This material is forwarded to the Judicial Council
for inclusion in a single coordinated request to the Department of Finance. The
separate judicial budgets are reviewed by the Administrative Office of the Courts for
consistency, and any problems in the individual budgets are discussed before a
coordinated budget is submitted to the Director of Finance."

g Since central review and submission may be under the supervision of the highest state court or
other court officials, the process may occur in states where there is no court administrator. The
tasks of central review and submission may be performed by the Chief Justice as in Montana,
or by the Supreme Court Clerk as in South Carolina before creation of a court administrator's
office.
 18

Central review of judicial budget requests is broadest in the New York

state court system, because it includes review of requests for local as well as
state appropriations. The state judicial budget officer is "the budget officer
for all the courts in the unified court system," regardless of whether those
courts are funded by the state, by counties, or by cities." He and his central
staff review all court budgets and arrange hearings in the four state judicial
departments. For example, the Criminal Court of the City of New York is
funded entirely by the city. Its budget is prepared by the Deputy Executive
Officer—Fiscal of the Criminal Court. The budget request is then submitted
to the city not by the Criminal Court itself but indirectly through the Judicial
Conference and Appellate Divisions. 20 Thus, in New York, central review and
submission reaches beyond state-funded courts. Such activity, however, does
not constitute a system of unitary budgeting that is characterized by central
preparation and general state funding.

Separate Submission

States characterized by separate submission of judicial budget requests

include those with limited state funding (4 states), itemized state funding (3
states), and mixed general state funding (3 states). No state court systems with
general state funding displayed a pattern of separate submission. In each case,
formal arrangements for central review and submission had not developed or
had broken down. One state, Missouri, indicates that coordination is
"beginning" between the State Court Administrator and the three-district
intermediate court of appeals.n Another state, Maryland, exemplified the
oppostie trend. 22 The state recently created a unified limited jurisdiction trial
court (the District Court) with full state funding, but the general jurisdiction
trial courts were not reorganized and remain heavily dependent on local
funding. In previous years, the State Court Administrator coordinated the
entire state judicial budget; after creation of the District Court system, there
were two judicial budgets, and the State Court Administrator did not see the
District Court budget until after it was submitted to executive branch budget
officials. As a result, the Maryland state judicial budget was less unified
following the unification of the limited jurisdiction trial courts. h

External Preparation

External preparation of some part of the state judicial budget is associated

h However, "there was nothing inherent in the establishment of the district court to mandate"
separte submission, and in 1975, following the direction of the State Chief Judge, a single
budget was submitted to the General Assembly. See letter from Wiliam H. Adkins II,
Maryland State Court Administrator, 58 Judicature 465 (May 1975). For purposes of
analyzing data in the present study, Maryland is classified by its practice prior to 1975.
 19

with limited state funding more frequently than the other types of budget
organization (7 out of 14 states). No court systems with general state funding
used external preparation. In theory, judicial budget processes characterized
by partial external preparation are the least integrated of all. Not only is there
an absence of internal coordination, but also an absence of internal budget
preparation at either central or local level. In practice, however, external
preparation is usually limited to statutorily mandated appropriations for trial
court salaries and expenses. California is such an example:

The state contribution to superior court judicial salaries and the state contribution to
the judges' retirement fund represent computational figures that are worked up by the
Director of Finance and the State Controller, respectively, although these figures are
also checked by the Administrative Office of the Courts."

Louisiana reports a similar situation:

The Division of Administration [in the executive branch] prepares the budgets of the
courts at the district level, as well as the lower courts which are only partially financed
by the state. These budgets include only such items as salaries and allowances provided
for by law and do not include court operating expenses, which is a local governmental
item. The amount appropriated by the State to these courts does not vary from year to
year unless there are statutory amendments or the number of judges or courts is
increased."

Thus, even states with well-developed central judicial administrative

offices may allow executive officials to prepare those portions of the state
court budget for which funds are mandated by statute and not subject to
discretionary alteration by budget makers. i
There are, however, instances in which executive preparation goes beyond
mandated items. A New Hampshire statute explicitly authorizes the state
comptroller, an appointee of the governor, "subject to consultation with the
justices, [to] prepare the estimates for expenditure requirements for the
supreme court for each fiscal year of the ensuing biennium."" The Clerk of
the New Hampshire Supreme Court confirmed that this is the present
practice. -I In Utah, the Clerk of the Utah Supreme Court reported that in
1972 the trial court of general jurisdiction (District Court) was entirely state
funded, but its budget was developed by the Assistant Director of the
Department of Finance in the executive branch.' The Supreme Court Clerk
prepared the budget request for his court and had nothing to do with the

i The extent to which courts can delegate administrative functions to external authorities and
maintain the power to take them over in the future may be problematic. The question is
discussed in different contexts in succeeding chapters.

In his questionnaire response, the Clerk cited the statute and noted that contact occurs between
the justices and the comptroller on "all budget issues." New Hampshire has no state court
administrator.
 20

budget of any other court.k And in Wisconsin, the State Bureau of Planning
and Budget in the executive branch reported that preparation of a judicial
branch budget was "done by state Budget Bureau based on orally stated
request of [the] judiciary and its members." When asked how the judicial
branch in Wisconsin could "present its budget requests more effectively," the
official expressed a preference that the judiciary prepare its own budget:
"Have Office of State Court Administrator prepare a judicial branch budget.
Need a consolidated approach. Presently fragmented budget comes from
judiciary to governor." 27 Thus, as late as 1972, the executive branch in at least
three states prepared a court budget that included nonmandated operating
costs. I
In delineating each of the four categories of state budget organization,
emphasis has been placed upon the mechanics of how the budget is developed
and not upon how well it is developed. By using the clagification adopted
here, we can differentiate between state judicial budget pr....esses on the basis
of how centralized (or coordinated or integrated) they are or how independent
they are, but not on the basis of how fairly or effectively tney allocate scarce
resources to components of the judicial branch. Thus, for example, it should
not be concluded that state court sYstems with central preparation necessarily
do a better (or worse) job of budget making than states with central review and
submission, separate submission, or even external preparation. It would be
worthwhile to develop criteria for evaluating the effectiveness of different
methods of budgeting. But even if such criteria were developed and some state
court systems proved more effective than others, it would still not mean that
one type of budget organization is more effective for one state than another.
For example, central review states such as New York and California may be
so large that central budget preparation would be too unwieldy. To go from
classifying state budget organization to recommending one method over
another is possible, but the complex analytical tasks require that such a jump
be made with care.m

Role of Budget Processes

Table 1-3 and the examples that followed illustrated similarities and

k Utah has since created a state court administrator's office. In West Virginia, which also had no
state court administrative office at the time the questionnaire was answered, the State Auditor
prepared budgets for the Circuit Courts (general jurisdiction trial courts) and certified them
directly to the Governor. However, unlike Utah, West Virginia limited trial court funding to
mandated items.
Note however that the Wisconsin Supreme Court operates on a sum sufficient budget, which
indicates that budget requests are merely estimates of projected needs that can be amended if
necessary. Trial courts are limited to mandated items.

m Note that the organization of the federal judicial budget has not been used for illustration in this
section. The fact that the federal court system has a single source of funding (Congress) does
 21

differences in how state court budgetary processes are organized. A final

distinction can be drawn between different functions of state court budgeting:
what roles can the budgetary process play within state court systems? By
adapting the analysis developed by Allen Schick, 28 budgeting can focus upon
control, management, or planning:

Control in budgeting is the process of enforcing the limitations and conditions set in the
budget and in appropriations, and of securing compliance with the spending
restrictions imposed by central authorities. If the budget details the allowances for
items of expense, the central budgeters will be required, or at least tempted, to monitor
agency actions in order to . enforce the limits. If restrictions are imposed on the the
spending discretion of agencies, the budget power will be used to uphold these
restrictions. Management involves the use of budgetary authority, at both agency and
central levels, to ensure the efficient use of staff and other resources in the conduct of
authorized activities... In management-oriented budgeting, the focus is on agency
outputs—what is 129,igg done or produced and at what cost, and how that performance
compares with budgeted goals. Planning refers to the process of determining public
objectives and the evaluation of alternative programs. To use the budget for planning,
central authorities dust have information concerning the purposes and effectiveness of
programs. They must also be informed of multiyear spending plans and of the linkage
between spending and public benefits."

Each of the three functions of the budgetary process is associated with a

particular era of administrative reform. The focus on expenditure control is
associated with the development of the unified executive budget at the turn of
the century in cities and staes, which culminated in the establishment of the
United States Bureau of the Budget (now the Office of Management and
Budget) in 1922. The focus on management efficiency is associated with the
Hoover Commission's call for performance budgeting in 1949. The focus on
planning is associated with current efforts to develop program budgeting,
including the PPB system used by the federal government from 1965 to 1971.
For most of this century, Schick argues, budgeting in the states has
operated "principally as a means for financing the ongoing activities of
established bureaucracies, not a an instrument for determining public
objectives."" The same may be said of court budgets. Court systems make
budgets because legislatures will not appropriate the money to pay the bills

not give it a unitary system of budgeting, because the federal judicial budget is characterized by
a combination of central preparation and central review and submission. Some budget
items—such as telephone money and jury fees—are initally estimated by the central
Administrative Office of the United States Courts, requested in lump-sum appropriations for
all federal district and circuit courts, and then apportioned to individual courts by the AO.
More commonly, however, the AO reviews requests initially generated by trial and appellate
courts for such items as supporting personnel. In an interview (August 1972), the Assistant
Director for Finance in the AO began by saying, "I'm a collection agency." Note also that the
AO does not review and submit the entire judicial budget. It develops the largest part of the
federal court budget, but the Supreme Court and the Federal Judicial Center develop separate
budgets. The federal judicial budget is submitted as a single unit, not by the Director of the AO,
but by the Chief Justice of the United States in his capacity as Chairman of the Judicial
Conference, following review by the Budget Committee of the Judicial Conference.
 22

until a budget is presented to them. However, those within the judiciary who
prepare and review and implement budgets can do more than play the role of
facilitator. They can, and often do, play roles of controller, or manager, or
planner.
For example, a court budget may include an item for juror fees. The
facilitator role would refer to the efforts of court budget officials to include an
adequate-sized item in the budget request, to obtain an appropriation to the
fullest extent of the request, and to assure that the appropriated funds flow to
those disbursing the fees. The controller role would refer to efforts of court
budget officals to assure that funds appropriated for payment of jurors are
used for that purpose and are spent at a rate that prevents premature
depletion. (Accounting is the profession usually associated with the controller
role). The management role would refer to efforts of court budget officials to
evaluate expenditures for jury fees in terms of the efficiency of juror use.
Budget officials with a management orientation would, therefore, examine
such data as the percentage of persons called who did not sit on juries, and the
costs of nonservice, so that budget requests for the following fiscal year could
take into account new initiatives to increase the proportion of juror time
served. (Business administration is the professional training traditonally
associated with the manager role). The planner role would go beyond
consideration of the efficiency of juror use. It would require budget officals to
consider the objectives of a jury system and the alternative methods (and costs
involved) for achieving those objectives. If the goal of having juries is to
maintain an antiquated but symbolically powerful tradition of our Ang-
lo-American legal system, then six-person juries might be an alternative. If
lay participation in the court process is the goal, then the use of lay
magistrates to try petty offenses and arbitrate civil disputes involving small
sums of money might be an alternative. 31 Considering such policy issues
makes the budget process part of the effort to develop and modify programs
and activities within the judicial branch in light of long-range goals of the
court system. (Systems analysis is the professional skill associated with the
planner role.)
Schick argues that while "every budget process includes aspects of
control, management, and planning, one function tends to predominate. As a
practical matter, these three functions are competitive; emphasis on one
diminishes use of the others."" The same can be said about the facilitator role
along with the other three in the budget process of state court systems. Most
court systems limit budget makers to the facilitator role. Expenditure control
is an important function in court systems, but it is often left to officials in other
branches of government." The role of manager is entering the court
budgetary process with the present generation of judicial reformers. The
emphasis of Chief Justice Warren E. Burger and other exponents of improved
judicial administration is upon bringing modern management techniques to
the courts. The success of court administrators is measured in their ability to
 23

reduce the size of court backlogs (a measure of efficiency); it is assumed

without proof that reduced backlog and shorter median time to trial will
increase the effectiveness of courts. Thus, planning is still not a characteristic
function of the budget process of state court systems. Many state court
budgets are expressed in terms of "programs," but a change in terminology
may not be accompanied by a change in emphasis.
The development of a planning role in state court budgeting is subject to a
basic limitation: analysis of system objectives would require that courts be
treated merely as one means to the end of achieving justice. Conceived in this
way, the court system becomes one of the alternative methods for the just
administration of laws and the just resolution of disputes in society. But court
budget officers must focus on the judicial branch and not on those elements of
the justice system outside the judicial branch. As a result, their planning
usually leaves policy questions about what should or should not be a judicial
function to legislatures and other decison-making bodies whose authority
reaches such questions.
Planning is possible within court systems, and courts can and do make
decisions about what their directions and priorities will be. The development
of the Law Enforcement Assistance Administration program of federal grants
through state criminal justice planning agencies has encouraged budgetary
planning by requiring courts to decide among possible projects, to develop
multi-year budget plans, and to build-in evaluation of new programs as
conditions for receiving federal funds. In making requests for state funds, such
planning emphases are rare. The Colorado court system, which has general
state funding and central budget preparation, is one example of a court system
with a strong planning orientation. Colorado State Court Administrator
Harry 0. Lawson speaks in these terms:

[T]he budgeting process must be more than a budgeting process if it is going to have
any meaning. It's not some sort of a dance or a spawning season you go through once a
year because you are supposed to, but it ought to be very definitely related to planning
and to development of court operations. .. . There's not much point in going through
an elaborate budgeting process if all you are doing is making a lot of work for a lot of
people. If you relate it to your other operations, and if you use it as part of planning,
then I think it makes a lot of sense....
One of the biggest problems you run into when you switch to state funding is that
judges and administrators at the local level are not used to planning long range. In the
first place, if they prepare the county budget, they usually do it two or three or four
months before the fiscal year begins and that's all. Very often if there's a good
relationship between the judges and the county governing body, you find that a judge
may decide his staff is overworked, and he will run down to the county commissioners
and say, "We need five more employees," and if the relationship is good the
commissioners may give him five more employees. This discourages any planning or
thinking ahead as to when five more employees might be needed, or even taking a look
at the present operation to see whether what is being done makes any sense, whether
any improvement can be made in court operations, or whether another five employees
ought to be fired_ ."
 24

The budgetary process that the Colorado court system is developing is

organized differently from the Planning-Programming-Budgeting System
used in the federal executive branch over the past decade. It is an "analytical
budgeting" system in which there is no separation of analysis and budgeting,
unlike the "crosswalk system" of the federal government, or the "two-track
system" of the Defense Department." The analytical budgeting organization
may make budgetary planning more effective in the Colorado courts than it
was in the federal executive branch, but it is subject to many of the same
competing pressures and organizational limitations. A planning orientation
may give more meaning to the budgetary process, but the kind of long-range
planning done as part of the budgetary process may be of poorer quality than
that done by policy planners who operate outside the short-run constraints
faced by budget makers."
Students of public administration will continue to question how effectively
budget officials are playing the roles open to them. At this stage in the
development of state court budgeting, it is worth considering preliminary
questions: How many of the four roles are played by officials in state court
systems? Under what conditions is it possible for a state court administrator
and his staff to go beyond the role of facilitator to roles of controller, manager,
and planner? For example, are these roles associated with different forms of
internal judicial budget organization, or different levels of state funding? And
how can roles new to court budget making be borrowed from executive branch
practice and effectively used to futher the objectives of state judicial systems?
The present study has not attempted to classify state court systems in
terms of these four budgeting roles. That additional effort would illuminate
the last of the four dimensions of state court budgeting and facilitate the study
of relationships between each dimension: amount of state funding, breadth of
state funding, method of organization, and role of budget makers.
 External Relations in
the Budget Process:
The Executive Branch

A discussion of the budget process of any executive agency cannot deal

exclusively with the internal generation of expenditure requests; relationships
between the agency and budget makers outside the agency must also be
considered. The same is true of judicial budgets. In all 50 states, that portion
of court expenses borne by the state and derived from general public revenues
(as opposed to court fees and fines) must be appropriated by the legislature
and approved by the governor. Furthermore, in almost every state, the
executive branch participates to some degree in the processing of judicial
budget requests.
Executive-judicial relations must be placed in the context of a state's
overall budget process. In some states, the governor's budget dominates the
process; in other states, the legislature writes its own budget largely
independent of the governor's recommendations. In states with a strong
governor's budget, legislatures tend to defer to the executive recommenda-
tions, and this deference may carry over to executive recommendations on the
judicial budget. Executive recommendations may then be important, regard-
less of statutory limits on executive revision of judicial budget requests.
Conversely, in strong legislative budget states, executive officials may spend
little time reviewing judicial budget requests because executive views on the
judicial budget would receive minimal consideration by the legislature,
regardless of the statutory authority of executive officials. Therefore, this
chapter considers not only the legal framework for executive review of judicial
budget requests, but also the actual participation of the executive branch in
the judicial budget process.

Executive Branch Authority

The most common pattern of executive branch participation is for state court
budget requests to be submitted to executive budget officials who review and
revise the judiciary's requests and incorporate the revised requests in the
overall budget document submitted to the legislature. The power to review
judicial budget requests is derived from statutory authority conferred upon an
official or agency of the executive branch to prepare an annual or biennial

25
 26

budget for all state departments. a Under such authority, a state budget office
may, and in most states does, require the judicial branch to submit in
appropriate form its state budget requests for executive branch processing. A
majority of state budget statutes, as shown in Table 2-1 make no
differentiation between the judicial branch and any other state department or
agency in provisions for budget submission and review. Eleven of those 30
states have statutory language explicitly including the judiciary in the state
executive budget process. In the other 19 states, the judiciary is not
mentioned in budget review provisons and is assumed to be included in the
process. The following statutory provisions illustrate language under which
the judiciary is subsumed:

"Agency" means any executive department, independent commission, board, bureau,

office or other establishment of the state government... . 2
It shall be the duty of said budget director to assemble . . . an estimate of the
financial needs of the several state departments, institutions, boards, commissions and
offices.... 3
As used in this chapter, the term "agency of the state" or "state agency" means and
includes every department, board, commission, officer, employee, and other agency of
the state, including, without limiting the general effect of the foregoing, state colleges,
state hospitals, state penal institutions, and other state institutions, enterprises, and
activities, wherever located, but excepting the regents of the state university and
persons and institutions under their control, and excepting all cities, villages,
boroughs, towns, counties, school districts, and other municipal corporations or
political subdivisons of the state, and excepting the professional and regulatory
examining and licensing boards enumerated in Mason's Minnesota Statutes..

In the remaining 20 states (as well as in the 4 federal and territoreal

jurisdictions listed in Table 2-1), statutory and, in a few instances,
constitutional provisions treat the judicial branch in a way different from
executive branch departments and agencies. The laws of 6 states authorize
transmission ofjudicial budget requests direct to the legislature. The laws of 7
states exclude the judicial branch from the general state budget process. The
laws of 9 states include the judicial branch in the general state budget process,
but deny to the state executive budget agency the power to revise judicial
budget requests. And 3 states prevent executive budget officals from revising
part but not all of the judicial budget. Finally, 31 states place no legal
restriction on the power of executive budget officals to revise judicial budget
requests prior to submission of the overall state budget to the legislature.
Table 2-2 classifies state laws according to the extent of executive branch
participation in the judicial budget process and whether or not the judicial

a All 50 states provide by statute for preparation of an overall state budget. In 4 states (Indiana,
Mississippi, South Carolina, Texas), budget preparation is the joint responsibility of legislative
and executive branch officials. See Book of the States, 1972 - 73 (Lexington, Ky.: Council of
State Governments, 1972), pp. 166-70, for a complete list of officials and agencies in charge of
budget preparation.
 27

Table 2-1
Statutory Authority of State Budget Agency
over Judicial Branch

State Budget Statutes Treat State Budget Statutes Treat

Judicial Branch the Same as Judicial Branch Differently
Executive Branch Agencies from Executive Branch
Agencies

Alabama Montana Arizona Oregon

Alaska New Hamshire Colorado Rhode Island
Arkansas New Jersey Delaware Washington
California New Mexico Georgia West Virginia
Connecticut North Carolina Hawaii Wisconsin
Florida Oklahoma Illinois
Idaho Pennsylvania Iowa
Indiana South Carolina Kansas
Kentucky South Dakota Louisiana District of Columbia
Maine Tennessee Maryland Guam
Massachusetts Texas Nebraska Puerto Rico
Michigan Utah Nevada United States
Minnesota Vermont New York
Mississippi Virginia North Dakota
Missouri Wyoming Ohio

TOTAL NUMBER 20 (plus 4 federal/

OF STATES 30 territorial jurisdictions

Note: This table refers to development of the state budget, not to its execution. A judicial branch
may be exempt from certain requirements in the execution phase (e.g., allotments) but included in
requirements for submission, review, and revision of requests. The "State Budget Agency" is the
authority charged with preparation of the overall state budget.

budget can be transmitted directly to the legislature. By this classification, the

Nevada and North Dakota court systems are the most independent of
executive budget authority, since the statutes of both states provide for direct
transmission of judicial budget requests to the legislature and exclude the
judicial branch from the general state budget process. (The statutory
provisions of these and other states can be found in the Appendix to this
volume.)
When court systems have the authority to transmit budget requests
directly to the legislature, they may be said to have independent access to the
legislature. Judges and state court administrative officials have spoken of
independent access as a necessary and sufficient condition for courts to be
independent of executive control in their budgetary processes. In fact, this
may not be so. Direct transmission of judicial budget requests to the
legislature may still be accompanied by a high level of executive authority over
Table 2-2
Judicial Budget Submission and Review under State Law

Extent of Executive Budget Agency Participation in Review of Judicial Budget Requests

Executive ex- Executive can Executive can Executive can

eluded from ju- review but not review but not review and re- IV
oo
dicial budget revise revise certain vise
process judicial budget
requests

Directly Nevada Colorado Hawaii a

Transmission North Dakota Ohio Nebraska b (C)
to legislature
of Judicial
Budget Requests [greatest
to Legislature degree
judicial
independence]

Indirectly Iowa Arizona Illinois All 30 states

Louisiana Arkansas c Maryland (C) in first column
to executive
Oregon Delaware Washington of Table 2-1
branch (except Arkansas)
West Virginia d (C) Georgia
budget Kansas
[least degree
agency Wisconsin New York (C)
ofjudicial in-
Rhode Island
dependence]

Note: (C) means applicable provisions are in state constitution.

a Classification based upon 1972 statutes. Ma or changes in Hawaiian law that were made in 1974 would now place Hawaii in the same category as Nevada
and North Dakota.
b Only supreme Court authorized to transmit budget requests directly to legislature.
C Executive budget agency cannot revise budget requests of any state agency without permission.
Constitutional language prohibits revision ofjudicial requests by executive budget agency; statutory language is broader.
 29

those requests. And conversely, states without direct transmission may use
other means to limit executive authority over judicial budget requests.
For example, Hawaii designated the chief justice "the administrative head
of the judiciary department," with power "to present the [judicial budget]
estimates, as reviewed and revised by him, to the governor and the legisla-
ture. . . . 5 At the same time, however, the judicial branch was not excluded
from the definition of a state agency for purposes of budget review and
preparation. As a result, the judicial branch was governed by the 1970 statute
authorizing program budgeting. Under the terms of that statute, the judiciary
(as a state agency) was required to prepare a six-year program and financial
plan, and the state (executive) director of finance could "revise as necessary
the program objectives, long-range plans, program and financial plans,
program budget requests and program performance reports initially pro-
posed or prepared by such state agencies. . . ." b Similarly, Nebraska
guarantees its highest court independent access by constitutional provision,
but its budget statutes still include the state court system in the executive
budget process, with all judicial requests subject to revision by the governor. 6
WhileHawndNbrskhveujctoxiveahrys
broad as that in the majority of states, even the relatively more independent
state court systems in Colorado and Ohio are required by statute to follow
executive branch directions in preparing their budgets. The executive budget
agency cannot revise judicial budget requests in either Colorado or Ohio, but
detailed stipulations as to format and procedure are included in state law.
(See the Appendix for the statutory provisions of these two states.) Note also
that in both Colorado and Ohio the provisions for direct transmission of
budget requests to the legislature apply to all state departments; independent
access is not a unique feature of the judicial process in the two states.
States that do not authorize direct transmission of judicial budget requests
to the legislature may still exclude executive officials from the judicial budget
process or require that executive officals transmit court budget requests
without revision. In these states, the executive budget agency is a conduit for
the judicial budget. Six states—Arizona, Delaware, Georgia, Kansas, New
York, and Rhode Island—prescribe a conduit role of the executive budget
agency. (These states' statutory provisions are in the Appendix to this
volume.) Arkansas law gives a conduit role to the executive budget agency in
relation to budget requests of all state agencies, including the courts.' The
federal judiciary also operates under the conduit model: federal judicial
budget requests are submitted to the Office of Management and Budget

b Act 159, Session Laws of Hawaii, passed in 1974, excludes the judiciary from the definition of a
state agency and gives the state Chief Justice authority to prepare and administer the
judiciary's budget and financial plan. The new Act is perhaps the most far-reaching attempt to
disentangle a court system from administrative supervision of the executive branch. (Relevant
provisions may be found in the Appendix to this volume.) The 1970 language can be found in
Hawaii Rev. Stat. § 37-67(3).
 30

(OMB) for inclusion in the executive budget document "without revision, but
subject to the recommendations" of 0 M B. c
Five other states may also be classified as conduit states. In Iowa,
Louisiana, and Oregon, budget statutes simply exclude the judicial branch
from the definition of a state agency.' West Virginia and Wisconsin statutes
exempt the judiciary from submitting budget requests to executive budget
officials. 9 But none of those statutes contains language explicitly authorizing
the court system to transmit its budget requests directly to the legislature.
In Illinois, Maryland, and Washington, executive revision authority
extends to only a portion of the judicial budget. The Washington statute
provides that leistimates for the legislature and for the supreme court shall
be included in the budget without revision," but does not extend that
requirement to all judicial branch estimates.'° The Maryland constitution
prohibits executive revision of mandated expenses, but not other operating
expenses:

The estimates for the Legislative Department, certified by the presiding officer of each
House, of the Judiciary, as provided by law, certified by the Comptroller, and for the
public schools, as provided by law, shall be transmitted to the Governor, in such form
and at such times as he shall direct, and shall be included in the Budget without
revision."

Illinois exempts its courts from the statutory definition of a state agency, but
includes within that definition "the offices of the clerk of the supreme court
and clerks of the appellate courts," which makes the requests from those
offices subject to executive revision." Thus, in none of these 3 states is the
executive budget office a conduit, but its review of some parts of the judicial
budget is subject to constraints which do not apply to its handling of other
state departments and agencies.
In summary, 16 of the 20 states whose budget review statutes treat the
judicial branch differently from executive branch agencies can be termed
independent access or conduit states. d The independent access model does not
necessarily provide more independence of the judiciary from executive budget
authority than the conduit model. Independent access states may still permit
executive revision of court budgets, or subject the judicial branch to executive
formats and procedures. Also, judicial independence of executive branch

C 28 U.S. Code §605. The provision was included in the act establishing the Administrative
Office of the U.S Courts in 1939. Prior to that time, the Justice Department handled internal
administration of the federal court system, including budget preparation. Note, however, that
the Supreme Court of the United States was exempt from provisions of the original Budget and
Accounting Act of 1921. The Budget Bureau was never given authority to revise the Supreme
Court's budget requests. See 31 U.S. Code § §2, 11.
d Arkansas is also a conduit state, but in that case the judicial budget is treated in the same way as
other state agency budgets. Falling in neither category are three partial revision states (Illinois,
Maryland, Washington, plus Nebraska), in which independent access is authorized only kr the
Supreme Court.
 31

budget authority does not increase as the breadth of state judicial funding or
the degree of internal judicial budget coordination increase. If anything, there
is a slight negative relationship." Statutory changes in recent years have
neither increased nor decreased judicial independence of executive branch
authority.
This survey of constitutional and statutory authority of the executive
branch over judicial budget requests requires an additional note: when the
judicial branch is treated differently from executive agencies under state law,
the legislative branch is also treated differently. A review of the laws in North
Dakota, Nevada, Ohio, Arizona, Delaware, Georgia, and Rhode Island (see
the Appendix to this volume) shows that special statutory treatment is
accorded both the judiciary and the legislature, in keeping with the notion
that both of them are separate from the executive branch of government and,
thus, subject to different requirements than are executive branch agencies.
However, it appears that the legislative branch is more frequently accorded
different treatment under the law than is the judicial branch. The program
budgeting provisions in Hawaii, enacted by the legislature, apply to the
judicial branch but explicitly exempt the legislative branch.' 4 Kentucky and
New Hampshire statutes exclude the legislative branch from the executive
budget process, but include the judicial branch and make its estimates subject
to revision." Utah exempts legislative branch requests from executive
revision, but not judicial branch requests." And Maryland's constitution
prohibits revision of some judicial but all legislative branch estimates, as
noted above. Section 198 of the Massachusetts Constitution authorizes the
legislature (General Court) to enact its budget independently, with no similar
provision for the court system. Thus, the legislative branch is independent of
executive branch authority more frequently than is the judicial branch.

Executive Branch Practice

In setting out the powers of executive officals to review and revise judicial
budget requests, the focus has been upon the legal (constitutional or statutory)
authority of the executive branch in the area of court budget development. A
survey of the law-on-the-books is not, however, equivalent to a statement of
the actual practice of court budget presentation and review in the 50 states. It
cannot be assumed that statutes and practice are identical. The working
hypothesis of the present chapter is that statutes condition and affect (but do
not necessarily specify or govern) behavior of public officials in their relations
with one another. The following section examines some of the connections
between the law and the practice of executive review of judicial budget
requests.
While statutes can be examined in library research, information on
practice must combine library work with field research. Perhaps the most
 32

effective methods of obtaining data on budget practices are partici-

pant-observation and field surveys. Both methods are costly and time
consuming. In the present study, the major source of data was a series of
closed-ended mail questionnaires,e supplemented by open-ended mail ques-
tionnaires and personal interviews. To reduce some of the familiar problems
of mail questionnaires (for example, ambiguity of questions, missing respon-
ses, and nonrespondents), questionnaires were sent to fiscal officials in all
three branches of government." Thus, information on judicial budget review
by executive officials reflects the views of both state court administrators and
state budget officers. f
In almost every state, some executive review of judicial budget requests
takes place. Thirty-two of 34 responding executive budget officals answered
"yes" to the question: "Are budget requests of the judicial branch reviewed by
an official or agency of the executive branch?" North Dakota and Arkansas
were the only states reporting no review. While neither state authorizes
revision of court estimates, Arkansas statutes do permit executive officals to
examine and comment upon judicial requests. g Conversely, executive officals
in Louisiana and Oregon both reported reviewing judicial budget requests
although state law excludes the court system from state budget statutes. h
In both West Virginia and Wisconsin, where statutes exempt the judiciary
from submitting its budget to the executive, the judiciary nevertheless does so,
and court budget requests are transmitted to the legislature by the executive
budget office without revision (the conduit model). In West Virginia, the State
Auditor certifies the budgets of the Supreme Court of Appeals and the Circuit
Courts to the Governor, who includes them in his budget without change." In
Wisconsin, as noted in Chapter 1, the executive budget office participates in
the preparation of state court budget requests.
When state law authorizes direct transmission of the judicial budget to the
legislature, available evidence indicates that state courts follow that prac-
tice." And Nebraska, which only authorizes direct transmission of the
Supreme Court budget, reports that "original requests" for all courts "go to
both executive and legislative budget offices at [the] same time." 2°

e Closed-ended questions are those that can be answered in a few words, or require selection of
the answer from a given set of alternatives. Open-ended questions allow the respondent to
develop his own answer. The four closed-ended mail questionnaires used in the present study
included a number of open-ended questions designed to probe closed-ended responses.
Obtaining views of different participants in the budget process within the same state allows a
validity check; since each participant sees the process from his own perspective, it is important
to know whether contradictory responses come out of the different perspectives.
g Note, however, that Arkansas' executive budget office reported in the questionnaire that it does
"no review" ofjudicial estimates because it has "no authority" to do so.
h In Iowa, where the judicial branch is also exempt from executive review, the state court
administrator also reports that the executive branch reviews the budget and may make
recommendations (but not revisions).
 33

The fact that few state court systems have independent access to
appropriating authorities—that is, the judicial budget is not transmitted
directly to the legislature—does not prevent access by the judiciary to the
legislature. Either the judiciary's orginial budget requests are noted in the
executive budget,' or the judiciary's requests are communicated to the
legislature by other means (for example, in California and Rhode Island).
Montana is the only state court system of 37 responding that reports having no
access to the legislature, in the sense that the executive branch could revise the
judicial budget without the judiciary's original requests being communicated
by formal or informal means to the legislature.
The ability of state courts to communicate budget requests to legislative
bodies reflects the greater openness of state budget processes in contrast to
that of the federal government. When a federal executive department's budget
is revised by the Office of Management and Budget for inclusion in the overall
executive budget document, the original agency requests are never made part
of the public record. In.spite of extensive publication of federal budgetary
materials, especially in the hearings and reports of congressional appropria-
tions committees and subcommittees, unrevised agency requests are not
available. In contrast, many state statutes require that original agency
requests be noted in the overall executive budget, so that the information is
available to the legislature and the public.k Thus inability to inform the
legislature of funding needs is not a problem for state court systems. The real
deficiencies in the judicial budget process center on developing well-conceived
requests, overcoming executive branch opposition to given requests, and
persuading appropriations authorities to grant the requests.
While some review of judicial budget requests by executive officials is
almost universal, the scope and intensity of that review varies widely, even
among those states with legal restrictions on executive revision of judicial
estimates. In Nevada, the Department of Administration spends "very little"
time on review and "makes no recommendations on judicial requests, except
[as to] format." Arizona's budget office spends only the amount of time
"required to determine mathematical correctness." I Georgia's budget office

This is done in a number of states in which the executive can and does revise the judiciary's
original requests (for example, Alaska, Connecticut, Kentucky, Massachusetts, Minnesota,"
Missouri, New Hampshire, New Jersey, North Carolina, Vermont).
In an effort to focus on behavior of court officials, the questionnaire to state-financed courts
asked whether requests were communicated, not if they could be. Thus, the Montana courts
may not be using powers they have (Montana is 1 of 8 states without a state court
administrator).

See footnote i.
I Arizona
• ,s budget office writes that "[The executive branch has no statutory authority to make
recommendations on judicial requests." However, this is a restrictive interpretation of
Arizona law, because that state's statute precludes "control" by the executive but does not
explicitly prohibit "recommendations".
 34

spends "very little" time on reviews; the judicial budget is "not analyzed or
changed." Oregon reports an "absolute minimum" time devoted to review of
judicial estimates."
In contrast, the Office of Program Planning and Fiscal Management of
the state of Washington spends an estimated nine man-days on judicial budget
review and offers the following explanation:

By constitution the governor cannot change the judical branch requests. The executive
branch review consists of an analysis of each request so that a detailed explanation of
increases can be written into the governor's budget and/or explained during legislative
hearings."

Furthermore, a number of states in which executive authority to revise judicial

budget requests is limited by law report changes by the executive of judicial
budget requests. Rhode Island reports that executive branch changes may
amount to 2 or 3 percent of the judicial budget, "usually requests for new
positions [or] major capital expenditures."" Wisconsin reports only "very
small" change: "Review is careful but negative recommendations are less
frequent" for the courts than for executive agency requests. 24
Delaware provides an interesting example of the way an active executive
budget office operates under limited statutory authority. The office reports
that the "Budget Director, by law, can make no changes nor can he
recommend changes in the requests to the Governor (except for obvious
errors)."m At the same time, the Governor, Budget Director, and Secretary of
Finance participate from time to time in discussions with judicial branch
officials, and executive branch hearings are held on judicial budget requests.
"If the judiciary request appears to be excessive," writes the state budget
office, "the Governor will suggest areas for reduction to the Chief Justice and
the Chief Judge [of the] Family Court. Hopefully, a compromise can be
reached.... The executive relies heavily on the judgment of the judiciary and
changes only those items mutually agreed upon." However, up to 10 percent
of the judiciary's total budget request is usually changed by the executive."
In Louisiana, the functions of the executive branch Division of Adminis-
tration that pertain to budget preparation and review, investigation, and
control of financial operations do not apply to the judiciary. However, the
court administrator's office in Louisiana reports involvement of the division
throughout the judicial budget process:

m The statute, which is quoted in the Appendix to this volume, does not contain authority to
correct "obvious errors." It also states that the Budget Commission, which "acts in an advisory
capacity" in budget preparation, cannot even "review" judicial estimates. However, the
Budget Office reports that it does review judicial budget requests. The quote on the function of
the Budget Commission is from Budgeting by the States, prepared for the National
Association of State Budget Officers by The Council of State Governments (Chicago: Council
of State Governments, 1967), a comprehensive source for general budgetary processes in the
states and territories.
 35

On or about mid-September, budget forms are received from the Division of

Administration . . . , requesting that agencies complete said forms and return to the
Division of Administration by January 15....
The budget requests of the Supreme Court and the Appellate Courts are reviewed
by the Division of Administration. This review correlates the quantum of funds
requested with the total state revenues available for the coming year's fiscal
operations. The Judicial Administrator meets informally with the Budget Section of
the Division of Administration where the specific programs of the Supreme Court and
the Appellate Courts are explained in detail. After such meetings, the amounts are
finalized by the Division of Administration for incluson in the Executive Budget.
The executive branch will recommend changes in judicial budget requests when, in
the opinion of the Budget Office, the amounts requested are in excess of the funds
available for the judiciary. Reductions are often made when additional personnel are
sought to implement new programs. Financial support is given to those programs in
existence, but support is hard to acquire for new programs or expansion of existing
programs. 26

Executive budget officials are also active in all three states in which partial
limitations are placed on executive authority to revise judicial estimates.
Washington's practice has previously been cited. The Illinois state budget
office reports that it reviews judicial budget requests, holds budget hearings
for approximately one week each year, and changes about 20 percent of the
judiciary's budget requests. 27 In Maryland, executive branch revision has
accompanied the use of an overall executive budget. The state court
administrator reported in 1972 that in only one year in the past 15 had the
judicial budget gone to the legislature in the same form in which it left the
judicial branch." The experience of Maryland's unified District Court
(limited jurisdiction trial court) indicates that the exercise of executive power
may be even more influential when a new court is first organized. Before the
District Court went into operation in 1971, a court management consulting
firm approved by the judiciary projected the costs of the new court and
recommended an initial annual appropriation of $12-15 million; but the
governor reduced the request to $10 million, and the legislature approved the
reduced amount."
These experiences in a number of states suggest that statutory limitations
on executive review of judicial budget requests may not prevent the executive
branch from taking an active and perhaps dominant part in the budgetary
process of state court systems. Conversely, the absence of such statutory
limitations does not prevent the development of limitations in practice. The
judicial budgetary process in Idaho provides the best recent example of a
nonstatutory agreement between executive and judiciary to adopt a conduit
model for transmitting judicial estimates to the legislature. "In January
1972," reported then Chief Justice Henry F. McQuade, "the judicial budget
was not altered by the governor, but was passed on to the legislative finance-
appropriations committee without comment." This change followed an
agreement between the Idaho Supreme Court and the governor and attorney
 36

general, in which "the Court. . . has been given the responsibility of taking
care of [its] own finances insofar as possible":

Formerly, the executive, without consultation with the judiciary, took the judicial
budget request and often would recommend cuts before passing the same on to the
legislative committee for legislative recommendation. However, during this last year,
this was not done and the judicial recommendation was given to the chief executive as a
courtesy matter and was passed along to the legislative committee without recommen-
dation.'°

A similar agreement was developed in Alaska, which is another state that

allows executive revision ofjudicial budget requests. On July 7,1967, a formal
Memorandum of Agreement was drawn up between the administrative
director of the Alaska Court System and the Commissioner of Adminis-
tration in the executive branch. "Cognizant of the basic principles of the
separation of powers," the two officials agreed that

. . . the Alaska court system shall continue to prepare its own annual budget request
using the format prescribed by the Division of Budget and Management for the
executive budget, which shall be transmitted to the Department of Administration's
Budget Review Committee for inclusion in the total budget submitted to the legislature
by the governor. It is agreed no diminution or alteration will be made by the executive
branch recognizing, however, the governor's statutory right to strike or reduce an item
or items in any appropriation made to the court system by the legislature. [i.e., the
item veto is reserved to the executive, but no revisions will be made in advance of
submission.]"

By 1972, however, the Alaska State Court Administrator's Office reported

that executive budget officers had cut the judiciary's budget requests by 30
percent, the highest percentage reduction reported by any state court
system. 32 The Administrative Director of the Alaska Court System at the
time, Robert N. Reeves, was asked about the inconsistency between 1972
practice and the 1967 Memorandum. He replied as follows:

The memorandum of agreement actually came about as a result of a lawsuit that was
filed in the Superior Court by the Administrative Director of Courts, Mr. McMillan,
against Mr. Robert W. Ward who was Commissioner of Administration for the
executive branch at that time. This case was settled out of court and thus the reason for
the memorandum of agreement. In my opinion and hindsight, this was a tactical error
because this was not a judgment of a court of law. The executive branch apparently
now finds that this is not binding on the executive branch. I should point out that the
executive branch is not the same as when the agreement was concluded.
Having lived with an administration that acknowledged the agreement and having
lived with one that did not, I would recommend that you advise other judicial branches
that in my opinion this is not an effective method of insuring the independence of their
budgeting process."

Thus, even though the Alaska agreement was part of an out-of-court

 37

settlement of a lawsuit, it did not survive a change of executive leadership. "

Whether the Idaho agreement survives longer cannot yet be known. However,
Chief Justice McQuade was optimistic that the agreement might become an
established part of the Idaho budgetary process; perhaps the active concern of
the state's highest court will help prolong the agreement.°
If a conduit model may operate without statutory lnguage and executive
officials may alter judicial estimates without a legal basis, how important are
statutory limitations on executive authority over judicial budget requests?
One way of assessing their importance is to examine their probable effects in
an aggregate of states. The close-ended questionnaire may provide a basis for
doing so. State court administrators (and state chief justices in those states
without a statewide administrator) were each asked: "Are executive officials
or legislative officials more likely to alter judicial budget requests?"" If
statutory limits on executive budget revision have any effect, we would expect
legislative officials to be more frequently chosen "more likely to alter" in
these states than in those where the executive is not limited.
The survey results reported in Table 2-3 support this hypothesis. The
legislature was more likely to alter judicial budget requests in 7 out of 12 states
(58 percent) that prohibit executive revision; the executive branch was more
likely to do so in only one of those states (8 percent). Conversely, the
legislature was more likely to alter judicial budget requests in only 6 out of 21
states (29 percent) that allow full executive revision: the executive branch was
more likely to do so in 10 of those 21 (48 percent)."
While Table 2-3 establishes a relationship between statutory limitations
on executive authority and the likelihood that legislative officials will alter
judicial estimates more than executive officials, it does not fully explain that
relationship. The fact that executive officials in 12 states shown on the table
have no authority to revise judicial estimates can explain why the legislature is
chosen seven times and the executive but once. But when there are no
restrictions on executive authority to revise, it does not necessarily follow that
the executive should be more likely to alter judicial budget requests than the
legislature. An explanation of that finding must consider how the authority to

• By 1974, however, a new state court administrator was able to reestablish the principle of
executive nonrevision. The Alaska experience suggests that a change in state court adminis-
trative practices (i.e. more moderate budget requests and more extensive budget justifications)
may be as important as the demands of the executive branch in facilitating an agreement
between branches.
O While Alaska and Idaho reported negotiating to limit executive revision of judicial budget
requests, no state court system reported any unilateral effort to implement independent access
by challenging the legitimacy of executive revision. However, in the territory of the Virgin
Islands, the court system laid down such a challenge in 1974 following executive branch efforts
to enforce an across-the-board budget cut against the judiciary as well as executive agencies.
The court system budget was prepared independently of executive guidelines and submitted
directly to the legislature, with notice given to the executive budget director.
 38

Table 2-3
Statutory Limitations on Executive Budget Officials
Related to Whether Executive or Legislative Officials
More likely to Alter Judicial Budget Requests

Officials More Likely to Alter

Judicial Budget Requests

Legislative - No Difference Executive

Limitation
on Arizona Arkansas Rhode Island
Statutory Colorado Delaware
Authority Iowa Ohio
of bc
No Authority Kansas West Virginia '
Executive Nevada
Budget New York a
Officials Oregon
to
Revise
Judicial
Budget
Requests
Partial Authority Illinois Maryland a '

Idaho Alaska Alabama

Michigan 'Minnesota California
Missouri Nebraska Connecticut
New Hampshire North Carolina Hawaii
Full Authority
South Carolina Tennessee Kentucky
Virginia Massachusetts
Montana
New Jersey
South Dakota
Vermont
Total States 13 10 12
a Governed by constitutional rather than statutory provisions.
b Governed by constitutional and statutory provisions.
c Constitutional prohibitions are placed on legislative reduction ofjudicial budget requests.
Sources: Classification of states by limitations on executive authority is taken from 2-2.
Classification of states by whether legislative or executive officials are more likely to alter judicial
budget requests is derived from closed-ended responses from 30 state court systems, and
interpretation of the narrative statements and interviews provided by 5 others. States classified as
"No difference" include those in which both alternatives were checked (Alaska and Delaware),
the word "neither" was written in by respondents (Minnesota, North Carolina, Ohio, West
Virginia), or the question was left blank and other responses indicated that no difference existed
(Arkansas, Illinois, Tennessee). Nebraska's response, "no established pattern," was also
classified as "No difference."
 39

revise increases the power of executive officials over the judicial branch. To
understand the link between the authority to revise and executive power, we
must consider state requirements for a balanced budget.
In the present study, state court administrators and state executive budget
officers were asked whether "the governor [is] required to submit a balanced
budget." Four alternatives were provided: (1) "Yes, required by state
constitution," (2) "Yes, required by state statute," (3) "Not required, but
always done in practice," and (4) "Not required by law or practice." Not one
of 34 executive or 29 judicial respondents—representing 43 states—chose the
last alternative. Constitutional requirements were cited in half the states, with
statutory requirements and custom dictating the practice in the remaining
states. P The balanced budget is thus part of the political life of American
states.
If the executive branch has no authority to revise judicial budget requests,
it must balance the bildget by cutting requests other than those submitted by
the judiciary, or the executive must negotiate with the judiciary to get judicial
agreement to reduce the requests. (This makes it essential for the executive
branch to see at least the total judicial estimate in any state and explains the
practice of sending "information copies" of judicial estimates to executive
officials in a number of states.) On the other hand, if the executive branch has
the authority to revise judicial budget requests, it can balance the budget by
unilaterally reducing requests for the state-funded courts. Then, although the
judicial branch may be able to present its case to the legislature for
reinstatement of the cuts, it will have to show where the money will come from
in addition to presenting its argument on the merits. Former New Jersey State
Court Administrator Edward McConnell recalled when his court system was
in such a situation. As a result, court fees were raised to cover some of the
increased costs and to convince the legislature that the court was willing to go
part way toward avoiding a budget deficit."
Thus, the grounds on which a court system must make its case to the
legislature depend upon whether the executive branch can revise judicial
budget requests. When authority to revise exists, the judiciary is dependent
upon the executive branch in a way logically different from that when
authority extends only to review and recommendation. When authority to
revise does not exist, executive and judicial branches bargain on more equal
terms. While executive officials can still use their influence to recommend that
the legislature reduce the judicial budget, they may be more willing to
negotiate with the judiciary and give executive support to the judicial budget in
exchange for judicial cooperation in facilitating an overall balanced budget.
This explanation has treated executive-judicial relations on budgetary
matters in political terms—that is, legal and constitutional requirements have

P Exact figures would require dealing with the large number of inconsistent responses in the
states in which both executive and judicial officials responded. State courts tended to attribute
the balanced budget to custom more frequently than did executive budget officials.
 40

been treated as factors affecting the relative power of the participants. An

alternative explanation might be stated in economic terms. The extensiveness
of executive review and recommendations from state to state may be a matter
of marginal utility. In other words, review would be expected to increase as
executive officials find it profitable (i.e., if budget cuts result). As a corollary,
executive review would be more extensive as the size of nonmandated sums in
the judiciary's budget request increases. While the present study has not tested
these competing political and economic explanations against one another,
some support for the economic explanation can be gained from examination
of Table 2-3. The bottom row of Table 2-3 shows 21 states in which
executive officials have full authority to revise judicial budget requests. Five of
the 21 are "general state funding" states—those where it would be most
profitable to revise. In 3 of these 5 states (Connecticut, Hawaii, Vermont), the
executive is more likely to alter judicial budget requests, and there is no
difference between the branches in the other 2 (Alaska and North Carolina).
Thus, in the states where there is most to gain, since there are more
nonmandated items, executive officials have greater impact than legislative
officials.q

Models of Executive Treatment

The first section of this chapter analyzed state budget statutes to determine
similarities and differences between the treatment of courts and the treatment
of executive agencies. The second section compared the treatment of courts as
specified by statute with their treatment in practice and gave special attention
to those states in which judicial budget requests were given some kind of
special status under state law. This section returns to the similarities and
differences between treatment of courts and treatment of executive agencies,
based on practice rather than statute.
The treatment of judicial budget requests in the executive review process
can be compared to the treatment received by executive agency budget
requests (as in Table 2-1) and also with the treatment accorded legislative
branch budget requests. These two comparisons generate four different
patterns of treatment, as shown in Table 2-4. When state budget officials treat
judicial estimates in the same way as those of legislative and executive
departments, a general equality model is operating. When treatment of
legislative requests is different but treatment of executive and judicial
requests is the same, the judiciary is being treated as if it were an executive

q Implied in this discussion is that legislative officials are not governed by the same forces as
executive officials; otherwise, the legislature would also be expected to pay increasing attention
to larger budgets. It may be that legislators would spend less time reviewing a judicial budget
they know has been subject to more extensive outside evaluation by executive officials. On the
strategies of legislators and agencies, see Aaron Wildavsky, The Politics of the Budgetary
Process, second ed. (Boston: Little, Brown and Company, 1974).
 41

Table 2-4
Treatment of Judicial Budget Requests by
Executive Branch: Four Models
Compared with Treatment of
Legislative Branch Budget Requests

Same Differently
Compared
with
Treatment Same General Equality Executive Agency
of
Executive
Agency Differently Separation of Powers Judicial Uniqueness
Budget
Requests

agency rather than an independent branch of government like the legislature;

an executive agency model is operating. When legislative and judicial budget
requests are treated in the same way and this treatment is different from that
accorded executive agencies, a separation of powers model is operating.
Finally, when judicial estimates are treated differently from those of both
other branches, the operative model can be termed judicial uniqueness.
Once these four models are defined, the next step is to use them to classify
the budgetary processes of state court systems. An initial classification is
presented in Table 2-5. It is based upon the responses of 33 state budget
officers to two questions: (1) "Does the executive branch treat judicial budget
requests differently from budget requests of executive agencies?" and
(2) "does the executive branch treat judicial budget requests differently from
budget requests for the legislative branch?" While answers to these questions
fit easily into the four models, the notion of how budget requests are "treated"
is so broad that different respondents may have interpreted the question
differently, thereby reducing the validity of the classifications. To check on
the possibility of differences in interpretation, each of the two questions was
followed by an open-ended probe: "If yes, in what ways?" The 10 state budget
officers who answered "No" to each question (the general equality states)
therefore did not answer further. However, comments were added by 22 of the
23 respondents who reported some difference(s) between treatment of judicial
requests and treatment of requests from one or both of the other branches. In
seven instances, a difference in legal authority was cited as grounds for the
answer. Thus, Arizona, Delaware, North Dakota, Oregon, and Washington
are classified as separation of powers states because legislative and judicial
estimates are not subject to executive control. Florida and Hawaii fall in the
executive agency model because the legislature and not the judiciary is exempt
 42

Table 2-5
Treatment of Judicial Budget Requests
by Executive Branch
Compared with Treatment of Legislative
Branch Budget Requests

Same Differently

General Equality: Executive Agency:

California Florida
Illinois Hawaii
Louisiana Kentucky
Massachusetts New Hampshire
Mississippi North Carolina
Same New Jersey
Oklahoma
Rhode Island
South Dakota
Texas

Compared
with Total States 10 Total States 5
Treatment
of
Executive
Agency Separation of Powers: Judicial Uniqueness:
Budget Arizona Missouri
Requests Arkansas Nebraska
Delaware Pennsylvania
Georgia Virginia
Idaho Wisconsin
Maine
Differently Minnesota
Nevada
North Dakota
Oregon
Tennessee
Vermont
Washington

Total States 13 Total States 5

Source: States are classified by answers of state budget officers to two questions: "Does the
executive branch treat judicial budget requests differently from budget requests of executive
agencies?" and "Does the executive branch treat judicial budget requests differently from budget
requests for the legislative branch?"
 43

from executive budgetary control. The classification of Kentucky and North

Carolina as executive agency states was also based on formal arrangements.
In Kentucky, the legislature prepares its own budget—that is, it has
independent access—while all other requests, including the judiciary's, lack
independent access and are included in the governor's bill. In North Carolina,
the "legislative budget does not necessarily adhere to budget concepts or
format as required of executive agencies, but Ethel judicial does."
Twelve state budget officers based their responses on differences in how
they behave toward judicial branch in contrast to executive agency and
legislative branch requests. r In placing states in a separation of powers
category, treatment of judicial requests was contrasted with treatment of
executive agency requests in the following ways:

We check only for accuracy and pass it to the legislature without comment. (Idaho.)
The detailed review that is given the executive branch budgets is not given to the
judicial branch budgets. (Maine.)
We accept their request as our recommended amount. (Minnesota.)
The budget office makes no recommendations on judicial requests except in
format. (Nevada.)
No adjustments other than rounding are made to budget requests. Executive does
not help defend requests to legislature unless asked. (Tennessee.)

In each case, what characterizes the operation of the separation of powers

model is that judicial budget requests receive less thorough review than do
executive agency budget requests. While 8 of the 13 separation of powers
states have statutory limitations on executive revision of judicial budget
requests, which indicates again that statutes have a significant effect on
budget practice, responses show that in 3 states (Minnesota, Tennessee,
Idaho) the state budget office plays a conduit role without any statutory
compulsion to do so. s
Responses from budget officials in the judicial uniqueness states all
indicate that judicial budget requests are not treated as rigorously as executive
agency budget requests.t However, 2 of the 5 states reported that judicial
requests are still subject to more thorough executive review than are legislative
requests:

New Hampshire is the only state whose classification can be explained solely on a statement of
budget outcome: "Executive doesn't have much impact on legislative budget."
One of the 5 judicial uniqueness states, Wisconsin, prohibits executive revision of judicial
estimates, as do 2 of the 10 general equality states (Louisiana and Rhode Island). No executive
agency states limit executive authority to revise; thus, states with statutory prohibitions on
executive authority to revise are significantly more frequently classified as separation of powers
states (8 of 13).
Missouri: The judiciary is a "co-equal branch of government. Generally [we] grant request for
all practical purposes." Nebraska: "Complete and detailed questioning is not always
The executive gives more time to review of judicial budgets. (Missouri.)
Greater coordination and more support from executive branch. (Nebraska.)

And the other 3 states indicated that legislative requests are treated more like
executive agency requests than are those of the courts:

[Executive] usually does not alter judicial request without concurrence of appropriate
judicial officials. (Pennsylvania.)
The General Assembly requests are usually unchanged, but supporting agency
requests are considered in somewhat the same manner as executive agencies.
(Virginia.)
Slightly more rigorous for legislature than for judiciary, but legislative staff has
been much more expansive than that ofjudiciary. (Wisconsin.)

In summary, the reasons given by state budget officers for saying judicial
budget requests are treated differently from those of other branches generally
focus on the thoroughness of the executive budget review process. References
to statutory limitations as well as references to behavior of budget officials
focus on how extensively judicial estimates are studied and questioned.
Therefore, the questions on which Table 2-5 was constructed were generally
given the same interpretation by respondents from different states. 0
One of the specific ways in which budget requests can be treated differently
is that different amounts of time can be spent reviewing them. The
thoroughness of executive budget review may vary directly with the amount of
time spent on the task. Thus, as another way of comparing treatment of
judicial requests with those of other branches, and checking the validity of the
classification of states in Table 2 - 5," state budget officers were first asked:
"How much time is spent in review of judicial budget requests?" and then
asked:

I. Is this amount of time ( ) more than ( ) less than ( ) equivalent to the

amount of time spent reviewing budget requests of the same magnitude
submitted by executive agencies?
2. Is the amount of time ( ) more than ( ) less than ( ) equivalent to the
amount of time spent reviewing budget requests for the state legislative
branch?

Table 2-6 indicates that while nine different answers could logically come
from the two questions taken together, the 32 responses fall in only five of the

conducted as with executive agencies." Pennsylvania: The executive "usually does not
question" judicial requests. Virginia: "Except for salaries, which are related to other executive
proposals, general guidelines are applied less stringently." Wisconsin: "Review is careful but
negative recommendations are less frequent for various reasons."

u The main exception is North Carolina, as confirmed in Table 2-6. Note also, however, that
the conclusion about similarity of interpretation cannot necessarily be applied to the general
equality category, since no open-ended question applied to them.
 45

Table 2-6
Amount of Time Spent in Judicial Budget Review by the Executive
Branch

Compared with time spent on legislative budget review

More Equivalent - Less

More Total States 0 Total .States 0 Total States 0

Florida California New Hampshire

Hawaii Illinois
Kentucky Massachusetts
Mississippi New Jersey
Missouri Oklahoma
Texas Rhode Island
Equivalent Vermont South Dakota
Wisconsin

Compared
with time Total States 7 Total States 8 Total States 1
spent
on executive Louisiana Arizona
agency of Nebraska Delaware
same size North Carolina Georgia
Idaho
Maine
Minnesota
Nevada
Less
Oregon
Pennsylvania
Tennessee
Virginia
Washington
Wyoming

Total States 3 Total States 13 Total States 0

Note: Arkansas and North Dakota, the only two states reporting no executive review of judicial
budget requests, are not included.

categories. No state reports spending more time on judicial budget requests

than on budget requests of the same magnitude submitted by an executive
 46

agency. In half the states (16 of 32), the same amount of time is spent on
judicial estimates as on similar executive agency estimates; in half the states,
less time is spent on the judicial requests. In two-thirds of the states (21 of 32),
the same amount of time is spent on judicial estimates as on legislative branch
estimates; in about one-third of the states (10 of 32), more time is spent on the
judicial requests.
Comparison of Table 2-5 and 2-6 indicates a high correspondence
between reported treatment of judicial budget requests and reported amount
of time spent in budget review. Eight states report equivalent time in budget
review for all three branches; 7 of these states were previously classified as
general equality states. Thirteen states report less time in judicial budget
review than in review of similar executive agency budgets and equivalent time
in judicial and legislative budget review; 10 of these states were previously
classified as separation of powers states. Three executive agency states appear
among the 7 states reporting more time spent in judicial than in legislative
budget review, but equivalent time in judicial and executive agency budget
review. Finally, one of the judicial uniqueness states appears among the 3
states in which judicial budget requests were reviewed for an amount of time
different from that given to other branches. In all, 21 of 31 states appearing in
both Tables 2-5 and 2-6 remained in consistent categories. Since time spent
in review is only one measure of the thoroughness of review (or differences in
treatment), this overlap is substantial and indicates the consistency of
responses by state budget officers to survey questions.
The validity of the classification of states in Table 2-5 should be subject
to additional checks. For example, there is some inconsistency between state
budget officer responses reported in that table and responses by state court
administrators to open-ended questions on their treatment by executive
budget officials." Yet, however tentative the classifications of particular
states may be, the four models do appear to tap real differences between the
way judicial budget requests are treated by executive budget officials from
state to state.
The four models can also be used as indicators of judicial fiscal
independence." A judicial branch is least independent in an executive agency
state and is most independent in a judicial uniqueness or separation of powers
state, with the general equality state falling in between. Used in this way, the
models will allow us to examine the relationship between breadth of state
funding, state judicial system organization, and judicial fiscal independence.
Since advocates of judicial reform often combine advocacy of increased state
funding and unified organization with support of judicial branch indepen-
dence, it is often assumed that (1) the greater the breadth of judicial activities

v The two branches agree on roughly two-thirds of the classifications. Note that the frequency
with which court responses fall into the four models is similar to that of the executive branch
responses.
 47

funded at the state level, the greater is the fiscal independence of the judiciary;
and (2) the more unified the court system, the greater its independence. The
availability of the four treatment models as measures of fiscal independence
allows these assumptions to be tested.
Because so many of the classifications of individual states are tentative, no
cross-tabulation presented here can provide an accurate or final statement
about the validity of the two assumptions noted above. The data available
indicate that no significant relationship exists—either between the breadth of
state funding and judicial fiscal independence, or between the unific tion of
state budget organization and judicial fiscal independence.
If anything, a negative relationship emerges: judicial fiscal independe ce
is less common when more judicial activities are state funded and when
judicial budget organization is less unified." The most fiscally independent
state court systems appear to be those with itemized state funding and those
with separate submission. (In each case, 5 of 7 states with either itemized state
funding or separate submission scored high on independence from executive
budgetary authority.) States with general state funding are no more
frequently independent than states with limited state funding. States with
central budget preparation are no more frequently independent than states
with external budget preparation. State assumption of full court funding does
not bring with it judicial fiscal independence; neither does unitary budgeting.
The independence of the court system from budgetary control of the executive
branch is a separate matter. Whether it can be achieved by state assumption of
full court funding or by unitary budgeting is problematic. If it does not exist to
some degree in a state prior to state assumption of full court funding or
adoption of unitary budgeting, it is not likely to develop as a consequence of
such changes."

The Item Veto

The authority of the executive branch over judicial budget requests does not
stop at the budget preparation and submission stage. Once the legislature has
approved judicial appropriations, the governor's veto power applies to those
appropriations as it does to all sections of the budget bill submitted to the
governor for his signature. While courts are frequently exempt from executive
authority in preliminary stages (for example, review and revision), no state
exempts its court system from the executive veto.

w Thus the Colorado court system, often viewed as a model of unitary budgeting and fiscal
independence from executive control, had some independence prior to state assumption of
general judicial funding. Trends and developments in state court budgeting will be discussed
more fully in Chapters 5 and 6. Note that propositons about the effects of change in one court
system characteristic (e.g., budget organization) on another (e.g., fiscal independence) cannot
be tested simply by reference to the co-existence of the two characteristics in other states.
 48

States have two kind of executive veto. Best known is the general power to
veto any bill pased by the legislature, with both houses given an opportunity to
override such a veto. Every state except North Carolina has such an executive
veto; so does the United States government and territorial governments such
as Guam and Puerto Rico. Most states also grant the governor power to veto
portions of appropriations bills. This so-called item veto is not only
widespread but is growing in importance as a tool for the exercise of executive
leadership in the states. In a 1967 study, Budgeting by the States, the Council
of State Governments reported that 38 state governors had item veto power. 4°
In April 1970, the council issued revisions of their budgeting study that
showed 43 state governors with item veto power.'"
At the present time, every governor has a constitutional power of item veto
that extends to judicial appropriations, except the governors of Indiana,
Maine, Nevada, New Hampshire, North Carolina, Rhode Island, and
Vermont. The governor of Maryland's power of item veto applies only to
supplementary appropriation bills." While Rhode Island's governor lacks the
item veto, he retains a broad statutory power to reduce or suspend
appropriations:

At any time during the fiscal year, upon notification by the budget officer that it is
indicated that actual revenue receipts will not equal the original estimates upon which
appropriations were based, the governor, for the purpose of maintaining a balanced
budget, shall have the power to reduce or suspend appropriations for any or all
departments or subdivisions thereof, excepting the general assembly, legislative
agencies and legislative committees and commissions.'"

The President of the United States of course does not have an item veto. In
light of the increasing number of states adopting the item veto in recent years,
however, the current national debate over presidential impoundment of funds
could be interpreted as an extra-constitutional reflection of the same trend.
Extension of the item veto at the state level appears to have widespread
support. In a 1967 report on Modernizing State Government, the Research
and Policy Committee of the Committee for Economic Development called
state provisons for item veto "commendable arrangements" and urged "their
universal adoption." 44
Item veto authority extends to judicial appropriations even in those states
otherwise placing tight restrictions on executive authority over judicial budget
requests. West Virginia, whose "Modern Budget Amendment" of 1968
constitutionally prohibited executive and legislative revision of judicial budget
requests, did not exempt the judiciary from gubernatorial power to "dis-
approve or reduce items or parts of items" included in appropriation bills.'"
The New York Constitution provides for independence of judicial estimates
from executive control in the preliminary stages, but specifically authorizes
the governor to exercise his item veto power:

The legislature may not alter an appropriation bill submitted by the governor except to
 49

strike out or reduce items therein, but it may add thereto items of appropriation
provided that such additions are stated separately and distinctly from the original
items of the bill and refer each to a single object or purpose. None of the restrictions of
this section, however, shall apply to appropriations for the legislature or judiciary.
Such an appropriation bill shall when passed by both houses be a law immediately
without further action by the governor, except that appropriations for the legislature
and judiciary and separate items added to the governor's bills by the legislature shall be
subject to his approval as provided in section 7 of article IV [which authorizes item
veto]."

Wisconsin operates its court system on a sum sufficient budget that allows
judicial salary increases to take effect upon authorization, without additional
provision for appropriations. An Attorney General's Opinion of June 25,
1970, argued that the governor's item veto power therfore extended to such
legislation:

Amendment increasing the salaries of circuit judges would be an appropriation bill in

that no further legislation would be necessary to meet the increased sum even though
neither the title nor the text of the amendment expressly mentioned appropriations,
and such amendment would be subject to a partial veto under the provisons of article 5,
section 10 of the Constitution."

Thus even those states that protect judicial estimates from executive authority
by constitutional and statutory provisons include those estimates within the
governor's item veto authority.' (Nevada is the only state with high judicial
fiscal independence and no item veto.)
The existence of broad legal authority for an item veto of judicial
appropriations does not say anything about the use of the item veto in
practice. As a practical matter, the item veto is rarely used on judicial
appropriations—so rarely that some state budget officers and state court
administrators deny that the power exists. Both sets of officals were asked:
"Does the governor have an item veto over judicial appropriations?" Those
answering yes were asked two further questions: (1) "How frequently is this
power exercised?" and (2) "Under what circumstances?" The state budget
officers were also asked to "list each instance in which judicial appropriatons
have been vetoed by the governor or reduced by him over the last five years"
and to indicate the date, amount, and reasons. Specific uses of the item veto
were cited in only three states (California, Connecticut, Texas). In two-thirds
of the states in which item veto power exists, either the state budget office or
the state court administrator's office could recall no instance in which the
power had ever been exercised on judicial appropriations. Table 2-7 below
provides a summary of data on the existence and use of the item veto.
If gubernatorial authority to veto items in appropriations bills is so

For example, North Dakota, which was one of the two states most fully independent of
executive authority; but note that the state budget officer, responding to the questionnaire, said
that "I personally doubt the constitutionality of the veto of the judicial budget".
 50

Table 2-7
The Application of Gubernatorial Item Veto Power
to Judicial Appropriations
Application of Item Veto Power to Judicial Appropriations
(Most Limited —. Most Extensive)

No Authority for Authority Exists but May Have Been Has Been Exercised
Item Veto Never Exercised a Exercised but No within Past
Example(s) Cited Five Years

Indiana Alaska Alabama California

Maine Arizona Delaware Connecticut
Nevada Arkansas Louisiana Texas
New Hampshire Florida New Jersey
North Carolina Georgia Oklahoma Total States 3
Rhode Island Hawaii Pennsylvania
Vermont Idaho South Carolina
Illinois
Total States 7 Iowa Total States 7
Kansas
Kentucky
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
New York
North Dakota
Ohio
Oregon
South Dakota
Tennessee
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Total States 29

Note: No information was available for Colorado, New Mexico and Utah. In Maryland, the
governor's item veto extends only to suppplemental appropriations, and no information was
available on whether that partial item veto has been exercised.
a Includes those states in which executive or judicial respondents deny that the governor's item
veto extends to judicial appropriations, although no explicit constitutional exemption can be
found.
 51

widespread, how is it possible to explain the limited use of this power in

practice? Is the notion of separation of powers operating as a general
constraint on the behavior of state budget officials? Probably not. Deference
to the wishes of the judiciary may characterize the screening of budget
requests in some states, but does not explain the infrequent use of the item
veto. In general terms, the item veto is used infrequently because the overall
state budget process places more emphasis upon executive involvement at the
early stages. The governor's budget staff screens initial agency requests before
a budget is submitted to the legislature. The item veto will thus play a role only
when the legislature chooses to challenge the governor's recommendations by
increasing appropriations. Since legislatures do not frequently increase
judicial appropriations above the level requested by the governor, use of the
item veto is unlikely. Conflicts between the governor and the state legislature
account for use of the item veto on judicial appropriations in both California
and Connecticut. Y
There is also a more technical explanation for infrequent use of the item
veto in some state court systems. In most states that have the item veto, that
power can only be exercised over whole items in the budget, and not • over
portions of a single budget item. These states have been careful to construe the
governor's item veto power narrowly, by concluding that the power to
disapprove distinct items does not include the power to reduce an item." In
1967, Pennsylvania was the only state in which the governor also had
authority to reduce an item. 49 In 1968, the governor of West Virginia was also
given that power."
In all but two states, use of the item veto therefore depends on what an
"item" in the judiciary's appropriation is. In Virginia, "appropriation items
are for total units (e.g., Supreme Court)"; 5 ' as a result, the item veto has not
been used, since its exercise would leave an entire court without state funding.
In the territory of Guam, the judicial budget is passed as a lump sum—it is not
itemized—and is therefore not subject to item veto. The territorial governor
challenged the use of lump-sum budgeting for the judiciary and the legislature
by vetoing the entire appropriation bill for those two bodies. However, his
veto was overriden by the territorial legislature. 52 In the present study, state
budget officers and state court administrators were not asked specifically
about how items were defined in the judicial budget for purposes of using the
item veto. However, it appears that to the extent a governor's item veto power
is narrowly construed and judicial budget items are for larger units, the
judiciary is less likely to be subject to the exercise of item veto power.z

Y The same is probably true of Texas; see the discussion of all three states below.
Z The governor's inability to exercise his item veto may explain why a number of respondents (4
state budget officers and 9 state court administrators) claim that the governor of their state has
no item veto over judicial appropriations even though constitutional language authorizes an
item veto. In the present study, such states are considered to have the item veto but not to apply
it, since a change in judicial budget format (which would not require any constitutional change)
would in almost all cases make an item veto feasible.
 52

When is the item veto exercised? What matters are at issue? The few
examples of an item veto of judicial appropriations provide some clues. The
Texas budget office, which reports that the power "is exercised infrequently"
when "the governor considers the appropriation excessive or unjustified,"
cites two uses of the item veto. In fiscal 1968, $500 for part-time secretarial
help was deleted as "not needed." In fiscal 1969, $91,000 was deleted on the
grounds that "no justification" was provided for the figure." Since the
governor's original budget would have included his own recommendations for
the judiciary—developed following public hearings 54—his veto was therefore
applied to an item added by the legislature. Contrast the Texas action with
executive branch policy in Pennsylvania, where the item veto is "seldom"
used—only in an "extraordinary state fiscal situation or by mutal agreement
that veto is necessary." There is no evidence of judicial consent to the item
vetoes exercised by the governor of Texas.
In Connecticut, the state court administrator's office reports the item veto
power

• . . is rarely, if ever, invoked. However, the governor did reduce the appropriations of
all budgeted agencies by 5 percent during the last two years [1971 and 1972]. He cited
the state's overall fiscal condition and the need to avoid deficits. 56

Since Connecticut's court system is wholly state funded, the 5 percent cut
amounted to approximately one million dollars, a substantial change in the
court's budget. Such a cut is even more difficult for a court system to absorb
than for an executive branch agency, because a considerable fixed portion of a
court system budget goes to pay judicial salaries mandated by statute. aa
Judges' salaries cannot be lowered; nor can judges be removed from office on
the grounds of state financial hardship. Since a substantial portion of the state
judicial budget is fixed, a 5 percent across-the-board cut would have to be
absorbed entirely by much sharper reductions in supporting services for the
judges. These arguments had no apparent effect on the action of the governor,
who declined to make any exception—full or partial—for the judicial branch.
Political conditions made compromise unlikely, since the governor was in
sharp conflict with a legislature controlled by the opposite party and had
already vetoed more bills in one legislative session than any governor in the
state's history. The judiciary was simply another victim in the governor's drive
to fulfill what he saw as his political mandate to cut state expenditures.
California provides the one example in recent years of the use of the item
veto as part of a major conflict between the executive branch and the judiciary.
On July 3, 1971, the governor struck $350,741 from the state judicial
appropriation. He "felt sufficient funds were provided in his original budget,"

aa Of the $23.5 million judicial budget passed by the Connecticut General Assembly in 1972, $17.1
million—or 73 percent—was for "personnel services," which included all judicial and
nonjudicial salaries. The budget bill did not separate judges' salaries from those of clerks, aides,
and so forth.
 53

writes the state budget office in explaining the veto. "The legislature increased
this [original] amount by the amount of the veto.'"' The California court
administrator's office provides additional information on the issues involved:

The most serious conflict between the judiciary and the executive in recent years
occurred during the 1972 legislative session, but this was a carryover of an issue that
was also a point of conflict in the 1971 legislative session. The conflict was occasioned
by an executive branch determination to prevent an increase in judicial salaries that is
mandated by a specific continuing section of the Government Code. This section
(Section 68203) requires an adjustment in judicial salaires annually on September 1 in
accordance with a cost of living index. In the 1971 legislative session the Director of
Finance refused to include sufficient monies to finance this increase (about 5 percent),
so that the amount appropriated for judicial salaries during the 1971-72 fiscal year
was insufficient to pay those salaries.
In the 1972 session of the Legislature, the Department of Finance maintained its
refusal to include the • September 1, 1971 statutory salary increase in the budget
proposed for the 1972-73 fiscal year. Furthermore, the Director of Finance refused to
request that the legislature provide a deficiency appropriation for the purpose of
financing the judicial salary payroll for the month of June 1972, the month in which
funds were actually insufficient to pay judicial salaries.
This conflict was resolved by the Legislature's putting the funds in a deficiency
appropriation bill over the objection of the Director of Finance for the 1971-72 fiscal
year, and by the Legislature's adding additional funds to the 1972-73 Budget Act over
objection by the Department of Finance. In his final consideration of the problem the
governor decided to sign both bills, thus resolving the problem for 1972."

The 1971 veto demonstrates that a governor can and will strike from judicial
appropriations funds to pay the salaries of judges as provided under a
previously enacted statute. The governor's eventual signing of the 1971-72
deficiency appropriation and the 1972-73 regular appropriation precluded a
possible constituitonal conflict involving all three branches. But the earlier
veto of a mandated judicial appropriation remains as an example of how far a
governor may carry his broad power of item veto.bb
The rare use of the item veto nevertheless illustrates that it has been used
without regard for the differences between courts and executive agencies, as in
Connecticut, or without regard for limitations on the appropriate exercise of
executive power, as in California (see chapter 6 on the appropriate operation
of the principle of checks and balances). In this light, it is important to recall
that item veto authority has grown in recent years, and advocates of state
governmental modernization support the power to reduce as well as eliminate
budget items, which step would eliminate some of the technical obstacles to
full use of the item veto on judicial appropriations." The item veto is of little

bb Interview sources indicated that the governor intended to veto the two appropriation bills in
1972 as well, until last-mintue intervention by a prominent San Francisco attorney of the
governor's political party (who was also a former state bar president) convinced the governor
that an item veto of judicial salary increases required by statute was highly inappropriate. One
observer argued that such an item veto would have been an unlawful act and had the governor
"not surrendered, he would have been compelled" to disburse the salary funds required by
statute.
 54

consequence to the judicial budget process in most states today, but it remains
the most substantial grant of legal authority that state exectuive officials
possess over court budgets. CC

Executive Supervision and

Judicial Dependence

The state executive budget officials surveyed in the present study were also
asked their opinions of the effectiveness of the judiciary's budget process and
the changes that might be made in court funding in their states. The responses,
frequently critical but generally constructive, provide a basis for our final
discussion of the role of the executive branch in the judicial budgetary process.
In response to the questionnaire item—"How could the judicial branch
present its budget requests more effectively?"-16 state budget officers (47
percent) made statements critical in at least some degree of existing budget
processes in their states. (Five states expressed satisfaction with their present
system, while the others made no comment.) The criticisms focus on two
areas: the organization of the judicial budget process and the formal
presentation (written or oral) of the judicial budget."
Provide more data in support of additional program and staffing needs to make the
judiciary process keep pace with other aspects of the criminal justice system. Their
budget is actually considered too conservative.
By applying the principles involved for executive branch agencies—that is,
detailing justification for increasing expenditure requests. What has been done to
increase efficiency? Is the taxpayers' dollar being spent effectively?
It does a good job now, but might present more information on problems it faces,
especially in light of U.S. Supreme Court decisions.
By more closely following standard budgetary procedures used by state agencies.
By itemizing the budget request much like the executive branch so programs are
easily identified, and by executive review prior to legislative passage.
By hearings before executive budget office.
By following more exactly the budget request procedures and forms presentation.
By more closely following the printed instructions.
On a program basis rather than a traditional line item budget.
Develop workload standards that can be substantiated based on fact.
Providing narrative justification and work load justification.
Advance presentation of program and work loads.
By taking steps to make productivity increases that would require fewer general
fund resources.
More concerted effort among courts of different jurisdiction.

cc Not considered in this section is the item veto of a claims bill cited by the Hawaii state budget
office as common practice. Usually not conceived as judicial because they are not part of the
judicial budget, appropriations to pay claims against the state would nevertheless be an
interesting subject for study. If an individual claim arose out of the judgment of a court,
unwillingness on the part of the state to appropriate funds to pay such an obligation would also
raise questions about the operation of the separation of powers.
 55

Consolidate all judicial branch under one administrative head for budget purposes.
Improve court administrator's office.

Executive branch criticism is directed mainly to encouraging the court

system to use formats similar to those used in executive agency budget
requests and to increasing coordination of the budget process. The tone of the
criticism is not harsh, but helpful. It may be a reflection of the executive
branch view that its budget apparatus is more highly developed than that of its
smaller judicial counterpart. This view is more poignantly expressed by one
budget official in another section of the questionnaire:

The executive feels that the judicial [branch] should be aided in budget preparation as
much as possible.

After being asked how successful the courts have been "in achieving the
level of funding desirable for their effective operation," state budget officers
were asked: "[W]hat factors account for this level of success?" None of the 33
respondents report that the courts are not successful; all indicate that the
courts are either very successful (22), somewhat successful (10), or both ( I ).
The reasons given for success range from analytical explanations to words of
praise to explicit political statements:

It's a separate branch of government, most of the costs are fixed such as judges'
salaries and jurors fees, and the total cost is relatively small compared to total cost of
state government.
[The state] took over the court system in 1967 and the judicial and executive have
worked together to get this phase-in completed. Therefore, both branches have been in
accord and no conflicts have arisen. Once this phase-in is complete, the executive will
look at judicial funding the same as for any agency.
Recognition of judiciary as branch and not agency of state government.
The fact that they are a separate branch of government and nonrevisable.
Realistic request[s] and realistic expenditures of prior year funds.
Proper justification and proper expenditures.
Basically, because of the sound organization of the present court system; and of the
reasonable and straightforward approach to budgeting by the judiciary.
Honesty and a willingness to be reasonable.
Generally because their budget request does not contain optional programs that
are controversial.
A priority by the governor for an effective court system.
In general the courts have a good rapport with legislative appropriations
committees.
Majority control of legislature congenial to court.
Immunity from [executive] budget review.
Political pressure.

The executive budget officials were then asked: "How could the courts'
level of funding be raised?" Answers almost always stress the need to supply
adequate information:
 56

Be more informative.
By the court's more adequately justifying needs.
By showing more effectiveness—less of a backlog—lower recidivism rate.
... with cogent data in support of request.
By showing a need and justifying their request to the governor and the Legislature.

Two officials refer back to the conservativism of their state courts by

suggesting, as one put it, that court funding could be increased "merely by a
larger budget request." A few other officials stress the external factors that
are often considered crucial for budget outcomes:

[As] in every agency of government, more total revenue is needed to raise any level of
funding.
Depends upon justification and priority and ability to raise revenues.

Finally, the budget officers were asked about changes that they felt were
"needed in the method of funding of state courts." Again, responses stress
budget presentation, but also contain broader implications of the effects that
changes in budget presentation have on budget preparation and upon the
assumptions underlying the funding of public programs.

Standards should be developed relating caseload to judges, state attorneys, and public
defenders. These officials should have to account for their time.
A more businesslike approach to court procedures and a cost-effective viewpoint
would make court funding more palatable to the taxpayer.
Changes now in process of formulation: more state funding; more rationalized
btidget process.
The changes needed would apply to all departments. Budget process is being
changed to give greater flexibility to program managers and make the process more
output oriented.
The hybrid financing methods [e.g., fees and fines] should be discontinued and
standard general and special revenue types of financing used.

A specific question was asked on increased state funding: "If your state
still funds its courts heavily from local sources, would you favor the state
taking over more of the cost?" Of the 21 executive budget officers who
responded to the question, 9 are affirmative and 12 are negative.dd Thus, in
spite of the added costs that would accrue from increased state funding, 43
percent of those responding favored such a change. It is a "good change in its
own right," writes an official from a state that is now studying just such a
proposal. "Should be completely a state function and responsibility rather
than local," writes another, "since a comprehensive criminal justice system
requires the co-operation and integration of the judicial process with the
enforcement and correctional process." Officials were asked the conditions

- kme of the negative answers comes from a state whose courts are already almost entirely state-
dd-
funded.
 57

under which they would favor increased state financing. The conditions that
were suggested are not unlike those proposed by leaders in the legal
community as an element of court reform:

Coordinate [state funding] with court consolidation.

Standards [should] be adopted and fines and forfeitures [should] be deposited into
the general revenue fund.
[State-level] control over the level of staffing and salary scales.

In their comments and recommendations, executive budget officals often

view the judicial branch as lacking budgetary competence. The judicial branch
is seen as unable to comply with the mechanics of budget preparation and
unable to plan in a rational manner necessary for public accountability. As a
result, executive branch officials see themselves as unable to fulfill their
responsibilities because executive budget offices need objective measures of
both how well the judicial branch has been doing its job (the evaluation
function) and how increased funding would enable it to do a more effective job
(the justification function).
What approaches do executive officals recommend to deal with a
perceived lack of budgetary competence? One approach would take steps to
develop budgetary competence within court systems. Another approach
would be for executive officals to accept the situation and deal with it as best
they can. It appears that the latter approach is preferred by executive officals
and most often followed in practice. The approach is characterized by
executive exhortations and efforts to make the judiciary conform to minimum
standards of format and justification. If the judiciary meets its minimum
formal requirements, executive officials will have the information needed to
evaluate judicial budget requests, determine whether a propsed expenditure of
funds is necessary, and justify to the legislature and the public a recommenda-
tion that is part of the governor's budget. In short, executive budget officials
seek from the judiciiary the minimum information needed to evaluate judicial
budget requests, determine whether a proposed expenditure of funds is
necessary, and justify to the legislature and the public a recommendation that
is part of the governor's budget. In short, executive budget officals seek from
the judiciary the minimum information necessary to do their job without
embarrassment. It is sufficient for the executive branch that the judiciary's
budgetary activity serve the purposes of executive budget making (overall
coordination, evaluation, and justification). Whether the judiciary has any
internal budgetary capability and can plan and evaluate its own purposes and
performance is another matter. ee
This pattern of executive review by periodic oversight can be termed

ee It is not the purpose of this section or this report to evaluate the budgetary competance of state
court systems. The concern here is with how executive officials view judicial budgeting, and
how those views effect the ability of courts to attain or increase their level of competence.
 58

benign supervision. The approach is benign ("good-natured; kindly")" as a

result of executive officials' perceptions of the judiciary as well-meaning, but
relatively weak. In the questionnaire responses, the judiciary's success is
attributed more often to its cooperativeness than to its power. As long as court
systems are conservative in their growth and spending habits and require state
funding largely for routine and mandated expenses, executive supervision can
be benign. In turn, benign supervision tends to re-enforce and reward fiscal
conservatism in the state courts. Whether this approach would be maintained
by executive budget officals in states where court systems are growth oriented
is problematic.
What effects does a system of benign supersivion have upon the judicary?
It places the judiciary in a status of institutional dependency, in which the
courts have neither the resources nor the incentives to develop internal
budgetary skills. Obtaining budgetary skills requires expenditure of public
money in a new area, and any new expenditure is more likely to face
opposition during executive or legislative review than an expenditure on
existing programs. At the same time, other fiscal needs compete for priority
within the judicial branch: so that as long as executive branch techniques and
assistance are available, a hard-pressed court administrator is likely to rely on
them. In terms of the four roles of budgeting discussed in Chapter 1, the power
and importance of executive budget officials leads court systems to adopt a
facilitator role to satisfy the formal requirements of those officials. The
controller, manager, and planner roles become secondary.
The judiciary's status of institutional dependency is not unlike the
situation of other groups and individuals in dependency relationships. For
example, critiques of the treatment of physically handicapped discuss the
oppressive nature of the sheltered workshops, in which handicapped persons
work at a simple task that provides no incentives or opportunity for growth
through the development of new skills. The humanitarianism of those who
maintain such workshops does not overcome the growing dependency of the
handicapped people who work there." Studies of foreign subsidiaries of large
corporations cite the phenomenon of truncation in which the subsidary
serving a smaller foreign market must rely on the parent company for services
such as research and development that the head office believes require
centralization for efficiency. In turn, the subsidiary may develop a "branch
plant mentality"—that is, because major decisions affecting the direction of
the organization are made from outside, managers in the branch plant feel
incapable of making those decisions themselves." In a similar way, court
systems allowed to operate with a low level of budgetary competence find it
increasingly difficult to attain greater competence (like a sheltered workshop
maintained on humanitarian grounds); judicial leadership often feels unable
to develop the skills that characterize the larger executive establishment (like
a foreign subsidiary, the judiciary is smaller and therefore can't afford as
many administrative specialists); and judicial branch officials, seeing the
 59

modern technology at the command of other public agencies, may rationalize

the administrative inadequacies of court systems as a reflection of the unique
requirements of judging Alike the branch plant mentality that attributes an
organization's inadequacies to inherent personality traits of its members). IT
What alternatives are available to a system of benign supervision by
executive budget officials and institutional dependency of the judicial branch?
The approach originally suggested as an alternative to executive supervision
was that of developing budgetary competence within the judiciary. However,
in light of the foregoing analysis, development of such budgetary competence
could not come from more active executive leadership imposing budgetary
techniques on the court. Such action would raise constitutional questions of
executive domination of the judiciary and practical questions about the
effectiveness of imposing techniques from outside;" nor would such devel-
opments be likely to arise from within the judicial branch, whose officials may
view them as unattainable or unimportant. While such an initiative from
within the judiciary may be unlikely, it may be the only effective method
available. The development of budgetary competence by state court systems
requires assertion by the judiciary of its own budgetary independence.

ff Instructive analogies can be drawn from other analyses of dependency relationships. See
Albert Memmi, The Colonizer and the Colonized (Boston: Beacon Press, 1967), for a
discussion of the effects of domination. The fields of juvenile and adult corrections confront
related issues. And note the similarity between fiscal demands of courts and those of married
women in the context of women's liberation (the demand for a separate bank account or credit,
or at least a lump sum for spending purposes, rather than having to request funds for purchase
of specific items announced in advance).
 External Relations in
the Budget Process:
The Legislative Branch

Relations between legislative and judicial branches raise questions different

from those concerning the relations between executive and judicial branches.
State court systems rarely question the legitimacy of legislative review of
court budgets, since control of appropriations is central to the exercise of
legislative power in a constitutional system of separated branches. West
Virginia is the only state in which the legislature cannot alter judicial budget
requests. a Wisconsin is the only state in which state-funded courts have
authority to spend amounts exceeding their appropriations. b In all other
states and territories, the legislature, in its discretion, approves the budget
figures for state-funded judicial activities.
This chapter also does not question whether legislative intervention is
legitimate; it asks about the conditions under which legislative intervention
produces cooperation between court system and legislature and the conditions
under which it precipitates conflict. The chapter then considers whether
certain characteristics of the budget process are related to the degree of
difficutly that court systems face in securing desired budget items. Two
different approaches will be used: the first half of the chapter draws on
interviews and surveys to make qualitative comparisons among states; the
second half reports quantitative data relating legislative outcomes to more
easily measurable characteristics of court systems and budget processes.

Patterns of
Legislative-Judicial Relations

In describing the ways in which state legislatures deal with judicial budgets,
court officials frequently refer to three major conditions affecting the
relations between the two branches: (I) the willingness of the legislature to
commit fiscal resources, (2) the power of the legislature in the judicial budget
process, and (3) the level of information possessed by the legislature.
Whether the legislature is willing to commit resources to fund courts depends

a Maryland had similar provisions until a constitutional change was approved in the 1972 general
election; both systems are discussed further below.
b The Wisconsin court system operates under a sum sufficient budget discussed later in this
chapter, although the Wisconsin Citizens Study Committee on Judicial Organization has
recommended use of a sum certain budget. See its Report to Governor Patrick J. Lucey
(Madison: January 1973), pp. 103-4.

61
 62

upon the overall wealth or financial condition of the state, the strength of
pressures toward frugality in state spending, the intensity of competition
among state-funded agencies for legislative support, and the degree to which
judicial budget requests are exempt from or subject to these pressures. The
power of the legislature in the judicial budget process varies from states in
which the legislature performs an independent reviewing function in the
budget process to states in which the legislature is subservient to the decisions
of executive budget officials or court officials. Legislative power is greater in
those states with a tradition of legislative leadership in the budgetary process
and when a legislature has adequate staff and organizational resources to
exercise power in the appropriations process. The level of information
possessed by the legislature—how much it knows and understands the needs
of the judicial branch—depends upon how much information the court
system collects and transmits in useful form at appropriate times to
legislative decision-makers, and the extent to which that information is
absorbed by the legislature.
The degree to which these three conditions—willingness to commit
resources, legislative power, and information—are or are not found from
state to state will give rise to different kinds of legislative responses to judicial
budget request. Under certain conditions a legislature may act as a buffer,
under other conditions it may act as an overseer; a legislature may be
deferential, critical, collegial, or defensive. Table 3-1 indicates the com-
bination of circumstances in which these legislative responses occur.
A review of Table 3-1 indicates that cooperative relationships are
associated with a greater willingness to commit resources. Buffer, collegial, or
deferential legislatures operate differently, but all three types are supporters
of the judiciary in its quest for appropriations. The three types of legislative
response that occur in states where resources are not as available—the
overseer, critical, or defensive legislature—are associated with conflict
between the two branches. The judiciary is not in a position where its requests
will be received sympathetically; it lacks a competitive advantage in the
search for scarce resources.
Material drawn from questionnaires and interviews illustrates the sim-
ilarities and differences in the ways legislatures deal with judicial appropria-
tions. Questionnaire responses are available not only from state court
systems, but also from the chairmen of appropriatons committees in a
majority of states.' In many cases it is difficult and inaccurate to force the
practices of a state into one of the six categories. Categories serve as
caricatures of actual processes: differences are accentuated to facilitate
comparison and to organize information. Thus the six categories are models
that allow individual states to identify the prevailing characteristics of their
judicial budgetary processes and explore the conditions that give rise to one
model rather than another. In many states, characteristics of more than one
model can be observed; no single model may accurately fit. However, if the
 63

Table 3-1
Legislative Responses to Judicial Budget
Requests

Willingness Power of legis- Level of infor- Type of

to commit lature in judi- mation possessed responses
resources cial budget pro- by legislature
cess

High High High Buffer

High High Low Collegial
High Low Low Deferential
Low High High Overseer
Low High Low Critical
Low Low Low Defensive

Note: Eight combinations of the three variables are logically possible, although only six are
presented here. The other two combinations would both involve low legislative power and a high
level of information. Such a combination is uncharacteristic of the appropriations process, since a
legislature that is low in power is unlikely to seek or be provided with a high level of information.

models provide some insight into legislative-judicial relations on budget

matters, they will have served a useful purpose. If not, alternative models
reflecting different concerns or approaches should be developed. A model is
not true or false, right or wrong; it is only more or less useful in guiding and
developing analysis.
The buffer legislature is one that supports the judiciary in its requests for
state funds, but does so after study of the court system's justifications for its
requests. In some cases, the legislature acts as a buffer against public criticism
of the courts by supporting judicial requests when such action is unpopular. In
other cases, the legislature may be a buffer against executive branch criticism
of court budget requests in that it supports the judicial branch by reinstating
sums stricken by the executive. To operate as a buffer, the legislature thus
requires the staff and organization necessary for an independent review, but
exercises its review power in a supportive manner. c
Current experience in California suggests that its legislature often fits the
buffer model. In 1971, the legislature increased the judicial budget over the
governor's original request, and the amount was item vetoed. The following
year, the legislature again challenged the governor and supported the court
system, and that time the governor backed down.' The chairman of the

c The likelihood that legislature will operate as a buffer or as one of the other types may depend
upon the magnitude of the judicial budget—that is, a legislature may be less willing to commit
resources when it funds a higher percentage or range of judicial activities. However, no support
was found for a similar hypothesis discussed in the second half of this chapter.
 64

Assembly Ways and Means Committee expressed support for the California
court system's demand for independent access to the legislature:

In California, the judiciary must present the budget through the governor's office (the
Department of Finance). If the judiciary is a co-equal and independent branch it
should deal directly with the legislature through its administrative agency, the Judicial
Council.'

This statement is another indication that the legislature is supportive of the

court system and thus serves as a buffer against the executive branch.
The buffer legislature has a high level of information about the needs of the
judiciary. This appears to be the case in California. The Assembly committee
chairman indicated that one factor accounting for the judiciary's success is the
"work of the Judicial Council in developing formulas, workload standards,
etc.
The judiciary's work is complemented by the substantial staff in the Office
of the Legislative Analyst and the work of committee staffs in both houses of
the legislature. The legislative-judicial relationship is thus more profes-
sionalized—characterized by the regular exchange of technical (often quan-
titative) management data—rather than by the more informal and person-
alized relationships of the collegial model. Note for example that the
California Assembly committee chairman was one of the few respondents to
the legislative questionnaire who opposed the participation of judges in the
legislative budget process. The process is viewed as an activity between
professional staff in the two branches. Legislative support derives from the
establishment of a professional working relationship in which extensive data
are generated to support judicial requests and legislative endorsements.
Since the California legislature is likely to maintain its power and its high
level of information, its continued operation as a buffer rather than an
overseer depends upon a continued willingness to commit resources. It may be
that the presence beginning in 1967 of a conservative governor, who was
concerned with curtailing the expansion of state programs, helped maintain a
high availability of resources for the courts by discouraging the developing of
competing demands for state funds from other expanding programs. A
change of leadership in the executive branch may therefore be accompanied
by an increase in demand as well as supply, thereby reducing the legislature's
willingness to commit resources for the judiciary and shifting the pattern of
legislature-judicial relations from the buffer to the overseer model.
The collegial legislature, like the buffer legislature, supports the
judiciary's budget requests, but does so without the existence of a high level of
information. Trust replaces hard data as the chief currency in exchanges
between branches. Legislative support may therefore follow pleas from judges
or court officials that certain budget items are essential. Such pleas may be
derived from the judiciary's day-to-day understanding of the difficulties of
handling its work, but they are conveyed with conviction rather than
 65

supporting data. The fact that the legislature has a high degree of power
requires that such pleas be made and that court system officials establish
continuous contact with legislative decision-makers, so that judicial requests
are accepted by the legislature. Relationships between branches are collegial
in the sense that the appropriations process is a joint enterprise requiring
mutual respect, but not requiring a high level of information.
The willingness to commit resources prevents a collegial legislature from
becoming a critical one. Thus, in conditons of general fiscal scarcity in a state,
collegial relations are maintained by judicial self-control. The court system
refuses to even request funding for new programs or other budget items, so
that by exercising fiscal restraint, it will be viewed as responsible and
trustworthy by legislative decision-makers. Collegial relations thus continue
when fiscal resources are generally limited, since the legislature is still likely to
accept the judiciary's more modest budget requests. The typical legislature
treats last year's appropriation as given—as the "base" for the present year's
request. As a result, a judiciary that does not seek increases in its budget will
find the legislature wiling to commit resources for existing programs.
Court systems that have established collegial relationships with their state
legislatures may be envied by court officials in more frugal states or in states
where appropriating authorities demand more information. "I think— —
scratches his budget on an old piece of paper he keeps in his back pocket and
takes it over to the chairman of the Appropriations Committee," mused one
respondent about a state court administrator. In some states, particular
courts can establish collegial relationships while other parts of the court
system must face criticism. For example, the New York Court of Claims had
a history of success in obtaining requested funds from the state legislature.
The attributes of that court facilitated development of collegial relationships.

The court up until 1960 was located in the capitol and was on the same floor as the
governor's office. [The Judicial Conference in contrast is headquartered in New York
City rather than Albany.] Our clerk [had] been in office for over 35 years and our
former presiding judge was associated with various people in the political field . . . for
over 35 years. Every day and night, the clerk or the presiding judge would be in contact
in one way or another with political figures, if only to ride to work on the bus with them.
As you can see, over the years a tremendous rapport [had] been established on an
informal basis with the people in power and more importantly, the staff people.'

While it is often possible for judges to relate to legislators as colleagues,

especially if judges are interested in expending the time and energy necessary
to build rapport and trust, court administrators may also be able to do so.
Seniority may help. Past membership in the legislature or on legislative staffs
may help. Whether appointing a judge or former judge to the position as state
court administrator facilitates the building of a collegial relationship with
legislative appropriations officials might also be subject to examination. In
practice, however, court administrators have a place in the organization of
court systems similar to that of professional staffs in legislatures. Both
 66

legislative and judicial branches are dominated by groups of elected (or

sometimes appointed) officials who hold relatively equal positions of prestige
within their own branches. Professional administrators or analysts constitute
auxiliary staffs rarely larger than the number of legislators or judges. As a
result, the working relationship between court administrators and legislators
is not likely to be the same as that between judges and legislators, or between
court administrators and professional legislative staff. d
The deferential legislature is the third and last type that generally supports
judicial budget requests. Like the collegial model, the deferential legislature
does not have a high level of information on judicial needs. But unlike the
collegial model the court system makes little effort to establish informal
relationships, because the legislature has little power over court budget
requests. In some states, the lack of legislative power is a result of active
executive branch review. In those states, the crucial decisions are made prior
to legislative consideration of the budget; legislative consideration consists of
ratifying previous decisions reached by executive and judicial branches. In
other states, the judicial branch is not subject to executive review, but the
legislature also devotes less attention to review of judicial requests than to
review of executive agency requests. As in the collegial model, the judiciary
may retain budgetary independence because it makes few requests likely to
receive legislative scrutiny (i.e., it sticks close to its "base"), but the judiciary
has escaped vigorous legislative scrutiny for so long that little time and effort
need be devoted to building collegial relationships.
One response from the chairman of the Vermont House Appropriations
committee indicates that the deferential model may operate there. The
committee chairman indicates that the legislature treated judicial budget
requests differently from those of executive agencies:

They [judicial budget requests] are treated with deference—if [the] court adminis-
trator can make a prima facie case, the matter is not probed as are administration
budgets. Courts are treated like women—as defenseless and as on a pedestal.'

At the same time, Vermont sources indicate that judges do not participate
in the budget process, which thus precludes one avenue for developing
collegial relations.' Whether the pattern of legislature-judicial relations in
Vermont is marked by legislative deference also depends on the extent to
which the legislature is willing to commit resources to Vermont courts. No
measures have been developed for this study, but a comment by the state court
administrator indicates at least some degree of frugality in the state.
"Executive department and legislative leaders must realize," he writes, "that
the courts have been neglected for a long time and should now receive greater

d In both California and Colorado, the state court administrators—Ralph Kleps in California
and Harry 0. Lawson in Colorado—have served as professional legislative staff members; in
both states, legislative-judicial relations are characterized by high levels of information.
 67

financial support."' The legislative committee chairman indicated however

that the courts were very successful in obtaining state funds.
Ohio may also exemplify a deferential pattern. That state's court
administrator reports that the legislature treats judicial budget requests
differently from executive agency budget requests "by respecting them."'
Perhaps the most extreme example of legislative deference is in West
Virginia, where the deferential model is built into the state Constitution. That
state's "Modern Budget Amendment of 1968" not only requires the executive
branch to transmit the judicial estimates without revision, but also provides
that the legislature shall not decrease any item of the budget relating to the
judiciary .'° As a result, the state must make sufficient funds available to meet
requests of the state-funded courts. But little interaction or information is
necessary; the clerk of the state Supreme Court of Appeals reports that no
hearings are held in either house, and no discussions take place between the
two branches on fiscal matters."
The adoption of constitutional language enforcing a pattern of deference
by prohibiting legislative reduction of judicial budget requests has a utopian
ring to court systems in other states. But the existence and survival of such
langauge in West Virginia law may be related to the administrative inactivity
of its court system. The West Virginia court system had no administrator and
no system budget until 75; nor had the Supreme Court of Appeals applied
for any funds from alternative sources (e.g., federal grants from the Law
Enforcement Assistance Administration). Furthermore, the judiciary's lack
of legislative contact may have retarded its ability to obtain increases in the
number of trail court judgeships and the salaries of both trial and appellate
judges, since such increases require statutory authorization. In fact, the
judicial branch reported considerable difficulty in gaining approval for these
increases. Finally, were the West Virginia court system to use its high degree
of fiscal independence to expand and modernize judicial services, legislative
moves to change the constitution itself might occur. In Maryland, just such a
sequence of events has recently taken place.
Until November 1972, Article III, Section 52(6) of the Maryland
Constitution provided that the General Assembly (state legislature) could
amend judicial items in the budget bill only "by increasing the items there-
in. . . ." This language had been accepted as a general prohibition on
reductions of judicial budget requests. e However, as the breadth of the state
judicial budget grew, f legislators began to question the breadth of the
constitutional language prohibiting reduction of judicial budget items. The
issue was joined when the 1971 session of the legislature struck from the

e As discussed in Chapter 2, similar language proscribing executive action had been limited in
practice to mandated items only.

f Maryland acquired totally state-funded District Courts (trial courts of limited jurisdiction) in
1971.
 68

governor's supplemental budget a $7,500 appropriation to increase the salary

of the director of the Administrative Office of the Courts. In past years, the
director's salary, a nonmandated item, was always made equal to the salary
of a trial judge of the court of general jurisdiction (in Maryland, the Circuit
Court). When the General Assembly increased judges' salaries by $5,000 in a
1971 statute, however, it declined to include any increase for the state court
administrator in spite of a recommendation from the executive branch. The
state Chief Justice then announced that he would pay the director's total
salary from other funds available to the judicial branch which prompted the
General Assembly to ask the attorney general for an opinion clarifying this
power." On February 28, 1972, the attorney general replied at length that the
legislature had exceeded its power, and the director was entitled to a salary
increase." At the same time, the General Assembly approved a constitutional
amendment authorizing the legislative branch to decrease as well as increase
judicial budget requests. The measure was approved by the voters in the
November election.
In Maryland, unlike West Virginia, the executive branch could revise
judicial budget requests. In practice, executive budget officials played an
active role in the court budget process. Maryland's state court administrator
thus opposed the 1972 constitutional amendment because he felt that "one
whack" at the courts was enough. The legislature disagreed, and won. Since
the courts had not focused in the past on developing rapport with legislators
(contacts were primarily with executive officials) and the fight over legislative
authority had accentuated previous conflicts,' 4 collegial relations were
unlikely for the immediate future at least. Resources that the General
Assembly was willing to commit because it had no choice might grow scarce.
In any event, the courts and the legislature must evolve a new pattern of
relationships, perhaps by focusing on an increased level of information. The
emerging pattern will depend upon whether the legislature challenges a strong
and established executive budget apparatus, and how effectively the judiciary
builds bridges to the General Assembly.
The overseer legislature is, like the buffer, an active and informed
participant in the judicial budget process. However, it participates not as an
ally but as an adversary. Judicial budget requests are there to be challenged;
supporting information is there to be examined and questioned closely. The
overseer legislature is high in power; it tends to operate in states where
executive budget officers are less influential in defining budget priorities and
legislators have developed a tradition of leadership in the overall budget
process. The demanding nature of the adversary relationship does not lead to
antagonism between branches, but to a kind of wary respect. Both sides
consider the budget process to be important, and both invest time and effort in
building working relationships. But because the legislature is less willing to
commit resources to the courts and plays a key role in resolving competing
claims for state funds, the court system cannot expect the kind of legislative
assistance it can secure from a buffer legislature or from a collegial one.
 69

The state of Colorado provides a useful illustration of a pattern of

legislative-judicial relations in which the legislature has an overseer role.
The legislature, through its Joint Budget Committee, "writes its own
appropriation bill" each year."
In the state court administrator's office,

... the major emphasis on budgeting takes place during a four-month period beginning
around June 1 and culminates in the presentation of the completed budget to the Joint
Budget Committee by the end of September. . . [The JBC] usually holds its hearings
prior to the convening of the General Assembly in early January. Our appropriation is
approximately 4 percent of the total general fund appropriation, and a whole day is set
aside for our budget hearing—three hours in the morning and the same in the
afternoon."

Responses from both legislative and judicial branches in Colorado

indicate that a high level of critical analysis goes into the budget process on
both sides. The court system has a full-time budget director and staff, holds
hearing with trial court officials throughout the state, and has worked to
develop and enforce uniform administrative standards at the local court level.
The court system's budget effort is designed to strengthen its case before the
JBC. Thus, the Chief Justice can argue that "our staff is tougher than the
county commissioners ever were. Last year the staff reduced the amount
requested by $900,000, which is no insignificant amount in a $20 million
budget." But while such arguments may strengthen the judiciary's case, they
do not alter the adversary relationship: "we lopped off $900,000 ourselves,"
recalled State Court Administrator Harry 0. Lawson, "and since we did that
the legislators returned the favor and knocked off another million.''
One technique that the Joint Budget Committee used in Colorado to
tighten the judicial budget was a "restricted base year."" When the Colorado
court system converted to general state funding in January 1970, it began with
a six-month budget (local governments budgeted on a calendar year while the
state budgeted on the July 1-June 30 fiscal year). The following year,
however, the JBC did not double the six-month budget figures, but authorized
a more restrictive total appropriation, against which succeeding requests
would later be compared.
Judges may be more likely to participate in the budget process in an
overseer rather than a buffer situation. But the function of judicial participa-
tion is primarily to shore up court defenses by providing legitimacy for court
administrative staff. Less emphasis is placed on the development of collegial
relations between judges and legislators. Consider the role of Colorado Chief
Justice Edward E. Pringle:

While the administrator and his staff present the budget details, I make the
introductory remarks and remain throughout the hearing to answer questions or make
additional comments as appropriate. It is important for the Chief Justice to be present.
Not only does it indicate the importance of the budget process, but it gives the Chief
Justice the opportunity to establish better personal relationships with members of the
 70

committee. It also assures that the judicial branch will be treated with proper respect
during the hearing process.' 9

The experience of the Colorado judicial branch illustrates how an overseer

legislature tends to demand and receive a high level of agency involvement in
the budget process. The legislature reports an "essentially . . . ongoing staff-
to-staff relationship," with discussions between branches most frequently
occurring on the initiative of the JBC staff assigned to the courts. 2° There is
"extensive" contact, "going into great detail on each item in the budget [and]
frequently calling for additional data." 2 ' At the same time, the chairman of
the Senate Appropriations Committee (the leading senator on the JBC),
criticized the judiciary's "lack of justification for existing practices that
compound backlogs" and called for improvement in the measuring of
administrative functions. The court system, writes the senator, should
"improve [its] evaluation of what it is administering" and "discourage
funding of poorly managed and less effective court operations.""
In its effort to reduce budget requests by applying analytical techniques,
the overseer legislature may apply quantifiable standards expressed in
equations or formulas. However, such standards are not objective; in practice,
an overseer legislature may take formulas used in executive agencies and
apply them to judicial branch operations without considering the distinctive
characteristics of the court system. g The Colorado judiciary has had to battle
the "vacancy saving factor," which the Joint Budget Committee calculates at
a fixed rate for executive agencies. The factor is based on the assumption that
an average agency will save a certain percent of the personal services portion
of its budget through the delay in filling vacancies when employees resign or
retire and the filling of such vacancies with employees at lower salary levels.
Lawson has described the resulting problems:

[We] have to allocate a portion of this vacancy savings to every court in the system.
[However,] we inherited quite a leave liability when the state took over funding. We
permitted people to transfer in a lot of annual and sick leave, and as old employees
retire, we have to pay this off. In many instances, these are positions that we can't keep
open while we are paying off leave time. So we have double coverage.
Another part of this problem is that in very small courts, where you may have only
one or two employees, or a combined clerk's office serving two courts in a rural area,
you are in drastic difficulty if somebody leaves. You have to replace that person
immediately. There is no possibility of vacancy savings except, perhaps, that which you
might realize from a lower salary. Another aspect of this problem, I think, is that the
state rate is based on the normal amount of time it takes the state civil service
apparatus to get into gear to crank out a replacement for a job that is vacant. We do not
have this kind of red tape, and the process itself takes a relatively short period of time..
.. Further, where you have confidential employees of judges in a system and the judge

g It may be axiomatic that all organizations (including courts) believe they are unique; on the
other hand, it is not uncommon to find that the application of uniform standards ignores real
differences among organizations.
 71

loses a court reporter, regardless of how much time that court reporter has coming, we
must have an immediate replacement. All these things add up to the fact that we don't
make our vacancy savings and to the extent that we are short, we have to try to put the
lid on other kinds of expenditures."

In these circumstances, the court system must "educate" legislators "to

the point where they do not automatically apply executive agency yardsticks
to court operations." 24 At the same time, however, the court system must
realize that an overseer legislature will continue to seek out yardsticks
whenever such effort can be used for reducing appropriations. h
The wary respect that characterizes adversaries in the overseer pattern of
legislative-judicial relations can be found in Lawson's explanation of why the
legislature acts as it does:

You have to understand role-playing in the legislative budget process. One of the
things I think is required is that you have to expect to be reduced. While the things you
ask for may have been fully justified, at least from your stand point, if the legislative
budget staff can't find places to cut your budget and justify these cuts, there is no
reason for its existence. I would say, however, that in presenting your budget, you don't
play games ... by asking for two or three times what you really want so that you'll get
what you want, because legislators and legislative staff are much smarter than that.
Legislators and legislative staff people are well trained; the people who have been on
the budget committee for a number of years are shrewd and they know all the tricks of
the trade. What you do, I think, is present a budget which includes justification for all
the things that you would like to have which would make your operation a good one,
with the recognition that they will probably cut you back—you hope not too far
back—so that they will leave you enough to operate reasonably well for the coming
year. They recognize that you are asking for development of new programs and for
raising existing programs to a level you would like to have, but you probably could get
along if they gave you less. They expect this: it gives them maneuverability and gives
you credibility. So you all take part in this process with its unwritten ritual."

Lawson's discussiOn of role-palying is not unlike analyses of the budgetary

process in the federal government. However, the Unted States Congress
approximates two different patterns of legislative-judicial relations. In the
House of Representatives, the Appropriations Committee resembles an
overseer. Its Subcommittee on State-Justice-Commerce and the Judiciary,
chaired for two decades by Representative John Rooney (Dem.-N.Y.),
earned a reputation as a demanding panel before which agency heads go in
fear. That subcommittee is the first to review judicial budget requests (the
executive branch can make no revisions) and always makes the deepest cuts.
In this manner, the subcommittee carries forward the prevailing values of the
full committee. 26
The situation is reversed on the Senate side, where the Senate Appropria-

h In at least one case, the Colorado court system performed a task more economically than its
executive branch counterpart, thereby providing the Joint Budget Committee with a formula to
apply against executive agency spending.
 72

tions Committee resembles a buffer. 27 Members of the subcommittee that

handles judicial branch appropriations have explicitly referred to themselves
as a court of appeal, to which agencies denied funds on the House side can go
with their highest priority projects, win Senate funding, and hope for a
conference committee report in their favor. Thus, Senate Appropriations acts
as a buffer between the federal judiciary and the overseer House Appropria-
tions Committee. In both the House and Senate, the judiciary is part of a
system in which there is a high level of legislative power, and a high level of
information is demanded. What varies is the degree to which the two
Appropriations Committees are willing to commit public money; Fenno
stresses that the House committee responds to the intensity of agency
competition by developing an ethos of fiscal conservatism. The distinction
between the two houses of state legislatures is not developed in this chapter,
partly for lack of sufficient data applicable to the judicial budget process and
partly because a substantial number of state legislatures use joint budget
committees or joint legislative budget staffs.
In contrast to the overseer legislature, the critical legislature lacks a high
level of information on judicial budget requests, either because it lacks staff
support sufficient to digest information, or because the court system does not
generate the quantity and quality of information that is submitted to an
overseer legislature. The critical legislature still makes cuts in judicial budget
requests—reflecting a high degree of power coupled with a low willingness to
commit resources—but its lack of information requires that budget cutting
proceed differently. Instead of developing and applying formulas, the critical
legislature must improvise, probing for weak points in budget requests, but
tending to look in the obvious places. Budget cuts may therefore be supported
not by the results of analysis, but by general criticism of court operation, and
sometimes by the criticism of particular substantive or procedural judgments
made by court administrators in their managerial function or judges in either
their managerial or judging functions.
A number of states responded to questionnaires in ways that suggest the
existence of a critical legislature. Oregon may be the best example. The state
legislature is high in power, largely because the executive branch has no
authority to revise judicial budget requests. At the same time, the state court
system has encountered difficulty because of "competition of other state
needs and stronger lobbies."" And the Joint Ways and Means Committee
cites "conservative fiscal policy" as the reason for legislative reduction of
judicial budget requests. 29 However, the legislature "does not require work
output indices and program justifications required of executive depart-
ments."" Unlike the overseer legislature, the Oregon legislature, following
the critical pattern, operates with less information. Cuts would therefore be
expected not by strict application of formulas applicable to executive
agencies, but by selective criticism of items in which cuts could more easily be
imposed. The state court administrator's responses bear this out. "Most of the
 73

budget is readily approved," he reports. "Any questioning will center around

new programs or items showing substantial cost increase." This technique
may be one of the most common approaches to budget cutting. Consider the
testimony of Edward B. McConnell, then New Jersey State Court Adminis-
trator, before a U.S. House Judiciary Subcommittee:

. • . [I]n the normal appropriating process at the state level, at least as I have seen it
operate, you get money for the routine, you get the money to do this year what you did
last year, and you can even get money to expand your system by a certain percentage,
but propose a new untried program and you get nothing. 32

The judicial budgetary process in Missouri also appears to illustrate the

working of a critical legislature. Both the executive and legislative branches
"set low priority" on judicial budget requests; as a result, reports the state
court administrator, "requests for new positions, repairs and replacement,
and operations were reduced significantly by the legislature."" The Chair-
man of the Missouri Senate Appropriations Committee had no criticism of
present budget practice (overseer legislatures generally demand more infor-
mation and justifications), but notes that "lack of state funds" has led to
"hold-the-line state budgets" in which the court system is only somewhat
successful in achieving desired funding." On the House side, criticism of the
courts has been expressed on the floor."
Budget cuts may occur concurrently with criticisms of the substance of
judicial actions, but the two may not be clearly linked to one another. Thus,
the Massachusetts court system, when asked about recent conflict between the
judicial and legislative branches, cites "legislative resentment at some rule-
making and decisions of the Supreme Judicial Court" that was "resolved by
the passage of time." At the same time, the court system experienced
considerable difficulty in gaining legislative approval for budget requests
already incorporated into the governor's budget. "Legislative resistence to
needed additional Superior Court judges, increased judicial salaries, [and]
additional personnel" was attributed "to lack of pressure (political apathy)
and a variety of political considerations."" Legislative criticism of the
substance of judicial actions may not result in budget cuts in the sense that the
former causes the latter, but they both appear to be associated with the critical
legislature model of legislative-judicial relations. The causal connection
may be reversed: general criticisms of the courts may arise when legislators
attempt to explain or justify reductions in the judicial budget brought on by
other factors (e.g., an unwillingness to commit resources) without the
information necessary to make precise criticisms of court fiscal management.
In other words, legislative criticism of the courts may be a rationalization of
budget decisions made on other grounds not related to court performance.
While the application of statistical formulas to state agencies is usually
identified with the overseer model (e.g., the vacancy-saving factor in
Colorado), one formula may be applied by a critical type of legislature: the
 74

across-the-board cut. When resources are scarce, a legislature can reduce

agency appropriation levels by a fixed percentage, thereby forcing the agency
itself to perform internal reallocations. In this way, the critical legislature acts
without having to obtain the information necessary to make the tough
decisions about how budget cuts are to be absorbed. This approach was
followed by the governor of Connecticut in his item veto of judicial
appropriations in 1971 and 1972." It has been used against the courts in recent
years by budget officials in New York City, and exemplifies the exercise of
power over court budgets in situations of scarce resources and little
information.
The defensive legislature is the last type included in Table 3-1. It has little
information about the judicial branch, exercises little power in the judicial
budgetary process, and operates under the pressures of limited resources.
Under these circumstances, legislators show distrust and sometimes apathy
toward the court system. Since they feel they can do little to change judicial
budget requests, they may either ignore the judiciary or lash out in frustration
at it. While there may still be extensive contact between court officials and a
critical legislature, there is much less contact between the two branches in a
defensive situation. The legislature has a very limited budget staff, which
further reduces opportunities for interaction between branches. The executive
branch dominates the state budget process, so that the legislature's traditional
role is more limited.
Responses of the Nevada state court administrator indicate that that state
legislature has some characteristics of the defensive model, although the
executive branch does not alter judicial budget requests. Discussions between
the two branches are less common than in other states. The judiciary's budget
requests also are rarely changed by the legislature. Yet, the state court
administrator reports some difficulties in obtaining leislative approval for
judicial budget requests and attributes them to "jealousy tempered by
parsimony."" In this situation, the legislature does little that is directly
damaging to the court budget, but cannot be counted on for support because
little rapport exists between branches.'
The only two states in which constitutional prohibitions have prevented
legislatures from reducing judicial budget requests—West Virginia and
Maryland—were categorized by the deferential response of the legislature.
Deference was imposed by the limits on legislative authority; resources were
made available because they had to be. i The only other state in which
legislative power is limited to a similar degree is Wisconsin, which operates on
a sum sufficient budget. Yet the Wisconsin legislature appears to exhibit a
pattern of defensiveness rather than deference. The emergence of this pattern
requires discussion of how sum sufficient budgeting works."
i Subsequently, Nevada became the first state to allow the office of state court administrator to
lapse for want of appropriations.
This is more accurate for West Virginia than for Maryland, where development of legislative
defensiveness contributed to 1972 repeal of the constitutional prohibition against reducing
judicial budget requests.
 75

A sum sufficient budget allows an agency to spend the amounts necessary

to carry out its authorized tasks, even if those amounts exceed the original
appropriation. In this sense, it is an open-ended authorization, but it is limited
by the legal mandate of the agency. Sum sufficient budgeting is used for those
public activities in which financial needs cannot easily be estimated. Thus,
Wisconsin applies the sum sufficient principle to some federal matching
programs (so that agencies eligible for federal funds are assured state support
at the crucial time), to the employment of special counsel by the state
department of justice and in aid formulas for mental health institutions. 40
Sumsficentbdg,lkump-sbdgetin(whcprovsal
appropriation for an agency or program that can be redistributed internally
without additional legislative authorization), has developed in the postwar
period of budgetary reform.
The application of sum sufficient budgeting to the Wisconsin court system
follows from the same budgetary theory. For example, Circuit and County
Court judges' salaries and travel expenses are state funded. Those amounts
can therefore exceed initial appropriations. If caseload increases require
unanticipated amounts of travel, necessary funds are assured. If increases in
the number of judgeships or salaries of judges occur after passage of the
original budget, a deficiency appropriation needed in many states is avoided.
Contrast this system with one in which a California trial court found itself. Its
effort to clear the backlog of jury cases exhausted the appropriation for jury
fees by late summer. Since that item was not open-ended, new authorization
was necessary. The county board denied the court's request, and yielded only
after the chief judge announced at a news conference that no more jury trials
would take place in his court until after the first of next year. 4 ' The court's
strategy, reminiscent of Teddy Roosevelt's sending the U.S. Navy halfway
around the world at the turn of the century, did succeed, but judges are
justifiably reticient about adopting these techniques of pressure politics. A
sum sufficient budget system would avoid similar situations.
Sum sufficient budgeting in Wisconsin has also been applied to the state
Supreme Court, partly in recognition of the principle of separation of powers.
A century ago, the Wisconsin Supreme Court applied the doctrine of inherent
powers to prevent the state personnel bureau from limiting the court's
authority over its employees, and that doctrine is still cited as one basis for
sum sufficient budgeting at the state level.' Today the state court adminis-
trative office is also on sum sufficient budgeting. This has allowed the court
system to establish a judicial education program and an information systems
program without prior legislative appropriations. The information sytems
program was initially funded by a federal grant matched from the Supreme
Court's sum sufficient budget. It was discussed with the legislative budget
staff in conjunction with the following year's budget requests.
The state judicial branch does not receive all of its state funds in a sum
sufficient form. For example, the law library is not on a sum sufficient budget.
However, enough of the court system operates on a sum sufficient basis to
 76

allow some innovation to occur without legislative check. The legislature

could alter the court's budget estimates, but such action would have no
binding effect on what is actually spent.
In this light, the questionnaire responses prepared by the director of the
Wisconsin Legislative Fiscal Bureau are particularly interesting. Wisconsin is
the only one of the 31 states answering the legislative questionnaire that
reports substantial conflict between branches:

The biggest legislative concern currently regarding funds for the judiciary relates to
additional courts and the question of court efficiency. The judicial branch budget
request is very deficient in providing information on this question.
[T]here is a general legislative feeling that there are substantial inefficiencies in
court organization and procedures and that therefore few, if any, additional courts
should be created and judicial salary increases should be withheld until there is
improvement in these areas.'"

Thus, the state legislature, denied an opportunity to prod the judiciary

through the budget process, has used its statutory authority to create
judgeships and increase judicial salaries to press for changes in the court
system.k Legislative-judicial relations are more strained than in other states
where court efficiency is a political issue, which suggests that a more defensive
legislature may be one consequence of successful judicial efforts to limit the
budgetary authority of state legislatures.
Another manifestation of the defensive legislature is the distrust of the
courts felt by nonlawyer legislators. Reports one border state legislator:

There has been some hostility (not serious) in the lower house toward the courts. I
think this arises from the presence of so many lawyers in the House and nonlawyers
feel the lawyers are too liberal with the courts.'"

This distrust derives in part from the nonlawyer legislator's concern that
his lawyer colleagues have a special interest in the success of judicial budget
requests. With a low level of information, the nonlawyers in the legislature do
not know whether to attribute judicial branch needs to workload problems
and fear that the lawyers in the legislature are helping the judges pad their
budget. Without information or legislative staff to do budget research, the
nonlawyers are unable to counter arguments by more knowledgeable law-
yer-legislators, and may express their sense of powerlessness by hostile
statements directed at the courts and the legal profession.
Questionnaire responses bear out the importance of lawyer-legislators in
some states. The chairman of the Illinois House Appropriations Committee
attributes the high level of judicial success in part to "contact between
lawyer-legislators and the judicial system." The Missouri state court

k At the same time, the Citizens Study Committee on Judicial Organization, established as a blue
ribbon task force by the governor, has recommended eliminating the sum sufficient budget. See
note b above.
 77

administrator counts among "legislative friends" those lawyer-legislators

who maintain contact with judges in their home districts. Lawyer-legislators
may therfore be valuable allies of the judiciary in the budgetary pro-
cess—whether because of their greater understanding or their greater self-
interest or both. However, if that natural alliance is not accompanied by other
sources of information, it may feed the suspicions of other legislators and
increase the likelihood that a defensive legislature may emerge as the
prevailing pattern. This possibility is not likely to decrease. Colorado Chief
Justice Edward Pringle notes that "the proportion of lawyers serving in state
legislatures has been slowly but steadily decreasing in most states. In
Colorado, the proportion has dropped from 30 percent to 20 percent in eight
years."'" As lawyer-legislators decline in number, their alliance with the
court system may be less productive if it simultaneously creates suspicions
among the nonlawyers.

Outcomes of the Legislative

Process

The six models discussed thus far have been used to identify common patterns
that emerge from descriptions of the budgetary processes of several state
court systems. Another way of examining the similarities and differences in
state court budgetary processes is to draw comparisons from closed-ended
questions answered by a number of states. In Chapter 2, this approach was
used to see whether the existence of statutory limitations on executive
authority actually affected the role of executive budget officials. Since there
are almost no states that place limits on legislative budget authority, the
effects of such limits cannot be tested with quantitative data. Therefore the
focus will shift to explaining the success of courts in obtaining funding. What
factors are associated with the willingness of legislatures to provide state
funds for the courts'? Are differences in the legislative process related to
differences in legislative output (i.e., levels of appropriations)?
Before such an inquiry can begin, some way of measuring levels of court
system financing must be devised so as to allow comparisons from state to
state. Items designated as judicial expenditures vary from state to state, as
does the proportion of these expenditures funded by state rather than county
governments. Therefore per capita state expenditure on the courts does not
allow a valid comparison. 46 It might be possible to measure legislative support
by the extent of budget cuts, but this measure would tend to single out states
with the lowest proportion of fixed costs (for example, the states that finance
administrative costs of trial courts as well as salaries), and states with more
aggressive court systems that propose more ambitious projects and make
larger budget requests.'

I Differences in the magnitude of budget cuts may provide a useful basis for comparing states, as
shown in Table 3-8.
 78

If the objective budget figures cannot be validly compared from state to

state, one alternative is a more subjective but more comparable measurement:
the answers to specific questions asked of knowledgeable officials in the
various states. Thus the questionnaires sent to all three branches of state
governments asked a number of questions designed to measure the degree of
financial success of state-funded courts—that is, whether the courts get funds
to support their activities. The questions are inherently subjective—they ask
what the respondent thinks (perceives) about aspects of court financing.
However, the present study sought to increase the validity of its subjective
questions by (1) making them somewhat more precise, and (2) asking similar
questions of officials in more than one branch of government.
Legislative appropriations committee chairmen in every state were asked
about "how willing" the legislature had been to fund nine different categories
of court expenditures: increased numbers of judges, increased salaries of
judges, maintenance of existing facilities, renovation of existing facilities,
construction of new facilities, increased numbers of professional adminis-
trative staff for the courts, introduction of new technology, use of outside
consultants, and development of pilot programs. m For each category, the
legislators were asked whether the legislature was very willing to fund (no
difficulty); somewhat willing (some difficulty); or resistant (considerable
difficulty). Respondents were also given a fourth possible answer: not
applicable (state funding not sought). State court administrators were asked a
similar question: "What degree of difficulty has the judiciary experienced in
gaining approval from the state legislature for funding each of the following?"
The respondent was then given the same four alternatives (no difficulty, some
difficulty, considerable difficulty, not applicable) for the same list of court
expenditure categores. 47
In Table 3-2, answers to the questions have been translated into
"difficulty scores" ranging from 1.0 (least difficulty) to 3.0 (most difficulty),
based upon the average (mean) response for all expenditure categories. If a
category was left blank or declared not applicable, the score was based on the
average of the categories for which ratings were given. The legislators'
responses are derived from 40 returned questionnaires from 31 states and the
District of Columbia. In those states where legislators in both houses returned
the questionnaires, scores are generally similar. Except for Hawaii where the
chairman of the House Finance Committee reported no difficulty (1.0) and
the chairman of Senate Ways and Means reported moderate difficulty (2.0),
difficulty scores never varied by than 0.5 (for example, Florida, 1.5 and 1.0;
Kentucky, 2.3 and 2.7).
Even more surprising is how closely the difficulty scores from responses of

m Expenditure categories were weighted toward new money, since students of budgeting have
suggested that these incremental additions are most likely to be the focus of legislative
criticism. See text accompanying note 32 of this chapter.
 79

Table 3-2
The Degree of Difficulty in Obtaining Legislative Approval
for Judicial Branch Funds, as Evaluated by
Legislators and State Court Officials

Difficulty Score

State Legislative State Court Composite

Questionnaire Questionnaire

Alabama 2.2 2.0 2.1

Alaska 2.9 2.9
Arizona 1.7 1.7
Arkansas 1.5 1.5
California 1.4 1.4

Colorado 1.9* 1.9

Connecticut 2.0 2.0
Delaware 2.2* 2.5 2.3
Florida 1.2* 1.2
Georgia 1.7 1.7

Hawaii 1.5* 1.5 1.5

Idaho 2.3 2.3
Illinois 1.8 1.6 1.7
Iowa 1.5 1.8 1.6
Kansas 1.6 1.4 1.5

Kentucky 2.5* 2.3 2.4

Maryland 1.5* 1.5
Massachusetts 3.0 3.0
Michigan 2.0 2.0
Minnesota 1.2* 1.6 1.4

Mississippi 1.5 1.5

Missouri 1.9 2.7 2.3
Montana 1.4 1.4
Nebraska 2.0 2.0
Nevada 2.1 2.1

New Hampshire 2.0 2.0

New Jersey 1.3 2.3 1.8
New York 3.0 3.0
North Carolina 2.5 1.6 2.0
North Dakota 2.4 2.4

Ohio 1.5 1.5

Oklahoma 2.0 2.0
Oregon 2.2 1.9 2.0
Pennsylvania 2.1* 2.1
Rhode Island 2.1 2.4 2.2
 80
Table 3-2 (continued)
State Legislative State Court Composite
Questionnaire Questionnaire
South Carolina 1.0 1.0
South Dakota 1.9 1.9
Tennessee 1.9 1.9
Texas 2.6 2.6
Utah 2.0 2.0

Vermont 2.0 1.8 1.9

Virginia 1.7 1.9 1.8
Washington 2.7 2.7
West Virginia 2.3 1.4 1.8
Wisconsin 2.2 2.2

District of Columbia 2.1 2.1

Guam 1.1 1.1

Note: No scores are available for the following states: Indiana, Louisiana, Maine, New Mexico,
Wyoming, and the Commonwealth of Puerto Rico.

Key: 1.0 = "no difficulty"; 2.0 = "some difficulty"; 3.0 = "considerable difficulty."
a An asterisk indicates that both houses of the legislature responded to the questionnaire.
Legislative difficutly score is then the mean of all rated items on both questionnaires.

state court administrators fit the difficulty scores from legislative committee
chairmen. Difficulty scores are available from court systems in 30 states and
Guam. In 15 states, as Table 3-2 shows, difficulty scores are available from
both legislative and judicial branches. In 4 of these states, there are substantial
discrepancies. Legislative committee chairmen in the North Carolina Senate
and West Virginia House both see the judiciary as having much more
difficulty than that reported by court officials themselves. In New Jersey and
Missouri, just the opposite is true; the Senate in each state reports a difficulty
score well below that of the state court administrative office. In the other 11
states, scores were no more than 0.4 apart, with legislators reporting more
difficulty than court officials in 5 states and court officials reporting more
difficulty than legislators in another 5. Thus, state court administrators did
not appear to exaggerate their difficulties or their successes with budget
requests before their legislatures.
These difficulty scores, available for 45 out of 50 states, serve as a measure
of the outcome of the judicial appropriations process: the lower the difficulty
score, the more successful is the court system in obtaining the financial
support it wants from state legislatures. The next step is to suggest
characteristics of the judicial budgetary process that might account for some
court systems having more difficulty than others.
One of the major structural differences in the way state legislatures
 81

process judicial budget requests is whether committees operate separately in

each house or whether a joint committee handles budget proposals. Joint
committees operate in at least 16 states (Arkansas, Colorado, Connecticut,
Delaware, Georgia, Idaho, Iowa, Kentucky, Louisiana, New Jersey, North
Carolina, Oregon, South Dakota, Texas, Utah, Wisconsin). Separate com-
mittees operate in each house of the legislature in at least 22 states (Alabama,
California, Florida, Hawaii, Illinois, Kansas, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Nevada, New Hampshire, North Dakota,
Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Vermont,
Washington, West Virginia). Virginia and Maryland have separate com-
mittees that hold single joint hearings on the court budget."
Table 3-3 relates the use of joint or separate committees to the composite
difficulty scores of 37 states. To do so, the difficulty scores are divided into
four equal groups, as follows: lowest quartile (1.0-1.5), 11 states; second
quartile (1.6-1.9), 11 states; third quartile (2.0-2.1), 11 states; and the
highest quartile (2.2-3.0), 12 states. (The absence of information on the
committee system in some state legislatures will reduce the number of cases in
each quartile.) The table indicates that court systems in joint committee states
have slightly more difficulty gaining legislative approval for their budget
requests. Sixty percent of joint committee states (9 out of 15) had difficulty
scores in the two highest quartiles, while 50 percent of separate committee
states (11 out of 22) fell in the two highest quartiles. The most striking
difference between joint committee and separate committee states is that the
latter are much more likely to have low difficulty scores (note the left hand
column of Table 3-3). This suggests that joint committee states are
consistently tougher on judicial budget requests than are separate committee
states. The lowest difficulty scores are more likely to be found in states where
budget requests are heard and screened separately in each house.
This tendency is supported by the responses of legislative committee
chairmen to another question: "What is the toughest legislative hurdle for the
courts' budget?" Legislators were asked to choose from eight alternatives and
were given space to suggest others. Responses from 31 states went as follows:
House (Assembly) committee (6); Senate committee (6); joint budget
committee (12); legislative leaders in the two houses (1); legislative staff who
screen budget requests (9); House (Assembly) floor debate (3); Senate floor
debate (1); joint conference committee (3); other (8)." Analysis of the
responses suggests that when joint committees exist, they tend to dominate
legislative review of the judicial budget; 11 out of 12 legislatures with joint
committees (92 percent) cited them as a major hurdle.° On the other hand,

n Nebraska is omitted from this discussion, since it is the only state with a unicameral legislature.
(Note, however, that a legislature with a joint committee may also use committees in each
house at some stage of the appropriations process.)

0 Maryland and Virginia are excluded from these calculations.

 82

Table 3-3
Method of Consideration of Judicial Budget Requests
by Legislature, Related to the Degree of Difficulty
in Obtaining Judicial Branch Funds

Degree of Difficulty
Lowest Second Third Highest
Quartile Quartile Quartile Quartile

Method of
Consideration

Joint Committee 5 4 5
Separate Committees 8 3 5 6

Note: Virginia and Maryland are not included since their committee systems have elements of
both methods of consideration.

when separate committees process the judicial budget in each house, they do
not play as dominant a role. House or Senate standing committees were cited
as major hurdles in only 6 out of 17 responding states (35 percent.)P
The reason why joint committees are more likely to dominate legislative
budget review than separate committees may be the greater importance of
professional legislative staff in joint committee states. Legislative staff was
cited as a major hurdle in 9 states-6 with joint committees and only 2 with
separate committees in each house.c1 Thus, legislative staff is a major hurdle in
50 percent of the joint committee states (6 out of 12), and 12 percent of the
separate committee states (2 out of 17), which indicates that the staff role may
be more important in those states in which joint committees handle the
judicial budget. The fact that some state legislatures with separate committees
in each house also have professional staff that jointly serve both houses (e.g.,
California, Maryland, Minnesota) suggests further that it may be the more
direct connection between professional staff and joint committee members
that contributes to a more important role for joint committees in the
budgetary processes of their states."
What other variations in how legislatures review judicial budget requests
may be related to differences in success/difficulty? One factor that would be
expected to produce greater success is the availability of committee hearings

P When the two committees were cited, they were usually cited together. Legislators in California
and Florida both cited conference committees rather than standing committees as the major
hurdle. Illinois, which has separate standing committees, was the only state in which legislative
leaders were cited as the most difficult hurdle.
q Maryland, excluded from these calculations, also cited legislative staff as a major hurdle.
 83

as a forum for presenting arguments on behalf of judicial budget requests.

However, this proposition is hard to test because legislative budget hearings
occur in such a large majority of states. Only 2 states, Pennsylvania and West
Virginia, report holding no hearings on judicial budget requests." Massachu-
setts reports no legislative hearings "in recent years.'"' In Virginia, hearings
are held only "if requested by the judiciary." 52 Tennessee reports hearings
"may occasionally be held."" Rhode Island has a similar situation: hearings
are held "on request";" they occur "most often" in the House Finance
Committee." Kansas reported hearings in one house only." In the remaining
39 states for which information is available (all states except Indiana, Maine,
New Mexico, Wyoming), hearings are held by joint or separate committees
each time the judicial budget is considered.r
No statistical correlation was found between the availability of hearings
and the degree of success/difficulty. The 7 states in which legislative hearings
are less available had difficulty scores ranging from 1.5 to 3.0 thereby falling
in all four quartiles." Note however that Kansas, the state reporting the least
difficulty, has regular hearings in one house, and of the 3 states (Pennsylvania,
Massachusetts, and West Virginia) that report no hearings, the first two
report higher difficulty scores.s So while there is no statistical support for the
common sense notion that court systems would be more successful when
legislative hearings are available, there is some indication that the availability
of hearings may contribute to reducing difficulty with the legislature.
When hearings are held, one or more representatives of the judicial branch
appear. Responses available from 40 states" indicate that administrators of
the state court system appear at committee hearings in 34 states on behalf of
state-funded courts. One or more judges appear at hearings in 26 states,
either on behalf of the state court system or on behalf of some segment of that
system. Court clerks appear in 9 states. Two states also note the appearance of
other court officials (e.g., the Supreme Court librarian in Oregon). In two
cases, executive branch officials responsible for generating and checking court
budget figures appear at hearings on behalf of state-funded courts. In the
Mississippi House, the State Auditor presents the requests for salary, travel,
and office expenses of District Judges and Chancellors; in the Missouri
Senate, the State Comptroller "represents" the Circuit Courts on salaries and
related matters." Although other states do not report similar presentations by
executive branch officials, the situation in Mississippi and Missouri is not
unexpected. In states with limited and itemized rather than mixed or general
state judicial funding, budget making tends to focus on achieving mathematic-
al accuracy rather than assigning program priorities.
In most states, therefore, state court administrative officials appear at

r But note that hearings are not necessarily held annually, since some states operate on biennial
budgets.

S West Virginia has its unique constitutional prohibition on legislative reduction of judicial
budget requests.
 84

hearings with judges but without other court personnel. Is the appearance of
state court administrative officials related to budget success/difficulty? Table
3-4 reports findings for that relationship.
While one might expect that the appearance of state court administrative
officials at committee hearings would reduce budget difficulty by providing
judicial budget expertise, the findings in Table 3-4 do not bear out that
expectation. In fact, nonappearance is associated with somewhat greater
budget success. 6° An explanation for this tendency is possible. North Dakota
and Texas, the two states in the highest quartile, both have state-level court
officials,t but these officials did not appear. In the other 8 nonappearance
states, all of which experienced less difficulty, there was no state court
administrative office at all.' This suggests that the important factor is not
whether court administrators appear at hearings, but whether an adminis-
trative office exists at all. In states without state court administrative offices,
the judicial branch is more successful in obtaining state funds. The judicial
branch perceives fewer needs, is equipped to make fewer demands, and is,
therefore, more likely to receive what it does ask for. The collegial or
diferential models of legislative-judicial relations may be more likely to
operate. Once an administrative office is created, the judicial branch may be
more likely to analyze system needs, make and justify a wider range of budget
requests, and in turn make the legislature more suspicious and less ben-
evolent.
Data on who appears before committee hearings indicate that supporters
of the judicial budget from outside the judicial branch rarely appear. When
asked whether "representative(s) of the bar or other private group" appear,
legislative committee chairmen from only 5 states responded affirmatively,
and of these, only one (Colorado) indicated that bar representatives
"frequently attend and may speak." Others indicated only that such group
representatives "may attend" if they wish and "will be heard upon request." 6 '
That the bar plays virtually no role in legislative hearings on the judicial
budget does not necessarily mean bar association officials cannot or do not
work with courts at other stages of the budget process. However, it does
indicate the absence of private participation at one important stage and
suggests that legislative budget hearings are designed as working sessions of
public officials rather than opportunities to rally community support. Re-

In Texas, the Civil Judicial Council has an executive secretary and legal staff, although no
similar official body operates for the criminal appeal side.
U Florida's state court administrative office was created early in 1972, but legislative question-
naire responses reflect the process prior to court reorganization. Since the initial survey, state
court administrators have also been created in Georgia, South Carolina, Utah, and West
Virginia.
v The creation of a state court administrative office also signals a possible increase in the breadth
ofjudicial activities funded by state rather than local governments.
 85

Table 3-4
Appearance of State Court Administrative Officials at
Committee Hearings, Related to to Degree of Difficulty
in Obtaining Judicial Branch Funds

Degree of Difficulty

Lowest Second Third Highest

State Court Quartile Quartile Quartile Quartile
Administrative
Officials

Appear at 7 8 8 9
Hearings

Do Not Appear 4 2 2 2
at Hearings

Note: Included in the "Do Not Appear" category are 7 states that had no state court
administrative officials at the time of the 1972 surveys (Georgia, Mississippi, Montana, New
Hampshire, South Carolina, Utah, West Virginia) and 3 states reporting that such officials had
not appeared at committee hearings as of 1972 (Florida, North Dakota, Texas). Indiana and
Wyoming also have no state court administrative office, but no difficulty scores are available for
them.

enforcing the latter suggestion is the fact that only one state (Illinois) reports
that legislators appear on behalf ofjudicial budget requests. Under the Illinois
system, the judicial budget is introduced in ten separate bills, and the bill
sponsors appear at the hearings.°
More crucial than hearings in the appropriations process may be the
existence of discussions between the judicial branch and the legislature. The
development of communication links across branches can provide a routi-
nized informal process by which the concerns of both branches can be
expressed and dealt with. Thus, the legislative committee chairmen were
asked whether "members or staff of the legislature discuss the judiciary's
budget requests with representatives of the judicial branch." Only one state
(Vermont) reports no discussion. Another state (Kentucky) reports no
discussion in the House, and the Senate committee chairman reports that
most discussions involving the judiciary take place between court officials and
executive officials in the Department of Finance, "not the General Assembly
people." The remaining 29 states all report that discussions take place."
Additional responses from the legislative branch indicate how widespread
and routine such discussions are in most states. Some two-thirds of the
responding states (21 out of 31) report that legislative-judicial discussions
take place "before the judiciary's budget requests are sent to the legislature."
 86

Fifteen states report discussions not only before budget submission, but also
between submission of requests and legislative hearings and between legisla-
tive hearings and floor action. However, only 3 states report that discussions
occur between legislative passage and gubernatorial approval of the budget, 64
whicndatesrbugqestarlyhndbitemvo
or that legislative involvement in the process is over, or both.
Responses to these questions—whether discussions take place, and when
they take place—can provide the basis for testing the proposition that the
more extensive the discussions between branches, the less will be the difficulty
in obtaining state funds. Table 3-5 reports the relevant findings on this
proposition. Note that states are classified by the extent of discussions as
reported both by legislative committee chairmen and by state court officials
who were asked similar questions.
Table 3-5 shows a relationship exactly the opposite of the proposed one:
when discussions are less extensive, there is less difficulty obtaining state
funds. Thus two-thirds of the low-discussion states (10 out of 15) have
difficulty scores in the lower quartiles, while two-thirds of the high-discussion
states (10 out of 15) have difficulty scores in the higher quartiles. The findings
suggest that discussion between branches is not a key to budgetary success but
a result of the need to avert budgetary difficulties. Thus, more extensive
discussion should be expected in states where courts seek more extensive funds
for nonmandated items.w
Legislators and court officials were also asked how discussions were in-
itiated—by legislators, court administrators, or judges. Responses to this
question would suggest the extent to which communication between branches
moves in both directions. Do legislators tend to come to the judiciary? Does
the judicial branch tend to go to the legislature? Or do both branches initiate
contact?
Data are available for 39 states (in 6 states—Nevada, Ohio, Pennsylvania,
Vermont, Virginia, West Virginia—no discussions were reported or there
were conflicting responses). In 27 out of the 39 states (69 percent), discussions
were initiated by both branches or respondents chose a fourth alternative:
"There is continuous contact between the judiciary and the legislature." 65 Six
states reported initiation from the judicial side only (Alabama, Arkansas,
Kentucky, Massachusetts, Nevada, North Dakota), while another 6 reported
initiation from the legislative side only (Connecticut, Kansas, Montana,
South Dakota, Tennessee, Utah). 66 The relationship between the direction of
communication and difficulty scores is set out in Table 3-6.
Table 3-6 shows that a high degree of difficulty in obtaining funds is
associated with the judiciary's initiating communication, while a lower degree

W But see Tables 3-10 and 3-11 and note that the states with general state funding do not tend to
have more extensive legislative-judicial discussion: 3 of those states are low in discussion, 2 are
medium, and 3 are high.
 87

Table 3-5
Extent of Discussions between Legislative and Judicial Branches,
Related to Degree of Difficulty in Obtaining Judicial Branch Funds

Degree of Difficulty

Lowest Second Third Highest

Quartile Quartile Quartile Quartile
Extent Low 5 5 3 2
of
Discus- Medium 3 4 4 4
sions
High 3 2 4 6

Note: States were classified as follows: Low — Alaska, Connecticut, Kansas, Maryland,
Mississippi, Nevada, New Jersey, New York, Ohio, South Carolina, South Dakota, Tennessee,
Utah, Vermont, West Virginia; Medium — Arizona, California, Georgia, Hawaii, Illinois,
Kentucky, Massachusetts, Minnesota, New Hampshire, North Carolina, North Dakota,
Oregon, Pennsylvania, Virginia, Washington; High — Alabama, Arkansas, Colorado, Delaware,
Florida, Idaho, Iowa, Michigan, Missouri, Montana, Nebraska, Oklahoma, Rhode Island,
Texas, Wisconsin.

of difficulty is associated with the legislature's initiating communication. This

finding does not mean that court officials should keep away from legislators
unless asked first. Taken together with the relationship shown in Table 3-5 it
suggests that communication by the judiciary may often be a response to
perceived difficulty and is less likely to occur when a legislature is doing little
to hinder the judicial budget and the judicial branch has placed few budget
demands upon the legislature.
Thus far, this section has related characteristics of the legislature and its
interaction with the judicial branch to success or difficulty in obtaining state
funds for the courts. Obviously, there are other factors external to the
legislature that may also be important and to the extent that comparative data
are available, these other factors can be examined as well. First is the
authority and practice of executive branch budget officials. How is the degree
of difficulty in obtaining state funds from the legislature related to the
existence of executive branch authority to revise judicial budget requests? An
argument could be made in either direction: executive authority to revise
might produce legislative inactivity, or it might provide legislators with useful
criticism of judicial budget requests that the legislature could incorporate
easily into its budget decisions. In fact, no correlation was found between
executive authority to revise judicial budget requests and the legislative
 88

Table 3-6
Direction of Communication between Legislative and Judicial Branches,
Related to Degree of Difficulty in Obtaining Judicial Branch Funds

Degree of Difficulty

Lowest Second Third Highest

Quartile Quartile Quartile Quartile

From
Legislature 2 2 2 0

InBoth
Directions 7 6 6 8

From Judicial
Branch 1 0 2 3

difficulty scores of the various state court systems.' However, since Chapter 2
stressed that executive authority and executive activity were related but not
identical, it would be useful to relate legislative activity to measures of
executive activity before concluding that the existence or nonexistence of
executive activity has no effect on how the legislature treats court budget
requests.
One measure of executive branch activity is the degree of difficulty
experienced by the judiciary "in gaining approval/endorsement from the
executive branch for funding" specific budget items. The state budget officer
questionnaire and the state-financed courts questionnaire both contained a
list of items identical to those used to compute legislative difficutly scores, 67
butrespondwakbutheilngsofxcutvebranh"o
approve/endorse funding." The responses can be converted into executive
difficulty scores analogous to the legislative difficulty scores used throughout
this section. The executive difficulty scores also range from 1.0 to 3.0, but are
generally much lower due to the operation of statutory restrictions in many
states. Thus, 11 states recorded scores of 1.0. The executive difficulty scores
can still be ranked, divided into quartiles, and then compared with legislative
difficulty scores. The results shown in Table 3-7 suggest that there is some
relationship between the two: the greater the difficulty in obtaining funds from
the executive branch, the greater the difficulty in obtaining funds from the
legislative branch."

Nor was any pattern discernible. See Tables 2-2 and 2-3 for classification of states by
limitations on executive authority to revise judicial budget request (full, partial, none).
 89

Table 3-7
Degree of Difficulty in Obtaining Executive Branch Approval/Endorsement
for Judicial Branch Funds, Related to Degree of Difficulty
in Obtaining Legislative Approval for Judicial Branch Funds

Degree of Legislative Difficulty

Lowest Second Third Highest

Quartile Quartile Quartile Quartile

Lowest
Quartile 3 4 0 3
Degree
of Second
Execu- Quartile 4 2 3 2
tive
Diffi- Third
culty Quartile 2 3 3 2

Highest
Quartile 1 2 3 5

Note: Executive difficulty scores by states are as follows: Lowest Quartile (1.0)—Colorado,
Georgia, Idaho, Montana, New York, North Dakota, Ohio, South Carolina, Tennessee, West
Virginia, Wyoming; Second Quartile (1.1-1.5)—Arkansas, Hawaii, Kansas, Massachusetts,
Minnesota, Nevada, Oklahoma, Pennsylvania, Texas, Vermont, Virginia; Third Quartile
(1.6-1.7)—Alabama, Arizona, Florida, Illinois, Maine, Mississippi, Nebraska, North Caro-
lina, Rhode Island, South Dakota, Washington; Highest Quartile (1.8-3.0)—Alaska, Califor-
nia, Connecticut, Delaware, Iowa, Kentucky, Louisiana, Missouri, New Hampshire, New
Jersey, Oregon, Wisconsin.

Since the question on which executive difficulty scores are based asked
about both approval and endorsement of judicial budget requests, it tapped
executive review activity, regardless of whether the executive could revise
judicial budget requests or simply recommend against them. The fact that
executive and legislative difficulty scores tend to be related suggests that
executive screening makes legislatures tougher on the courts, and the absence
of executive screening makes legislatures more lenient.
This generalization can be refined further with responses to another
question asked of both executive and court officials: "How extensive are
changes in the judicial budget made by the executive? ( ) No changes are made.
( ) Only minor changes are made. ( ) Significant changes are made. ( ) Other.
Please specify ... ." Of 47 states for which responses are available, 18 indicate
that no changes are made, 20 that only minor changes are made, and 9 that
 90

significant changes are made. (In 3 cases, there were conflicts between
executive and court responses that were resolved in each case by reference to
supporting data in the questionnaire.) Table 3-8 presents the responses in
relation to legislative difficulty scores.
Table 3-8 again indicates that state-funded courts tend to have more
difficulty with legislatures in those states where the executive branch makes
changes in the judicial budget. However, when executive branch changes are
significant rather than minor, difficulty with legislators tends to decrease.
Thus, both of the original arguments are supported by the relationship
between executive review and legislative treatment: (1) active executive
screening of judicial budget requests is associated with greater difficulty for
the judicial budget in the legislature; but (2) when executive screening is more
extensive, the judicial budget faces less difficulty in the legislature.
A second factor external to the legislature that would be expected to affect
the degree of success/difficulty ofjudicial budget requests is the extent of state
funding. Legislatures are likely to be tougher if the state is paying more of the
courts' bills. More precisely, the greater the percentage of judicial ex-
penditures funded by the state rather than its localities, the greater the
legislative difficulty score. However, Table 3-9 indicates that such a
relationship does not in fact exist; 69 nor does any relationship exist between
the degree of legislative difficulty and the breadth of activities covered in the
state judicial budget as shown in Table 3- M."

Table 3-8
Extent of Executive Branch Changes in the Judicial Budget,
Related to Degree of Difficulty in Obtaining
Legislative Approval for Judicial Branch Funds
•4

Degree of Legislative Difficulty

Extent of Executive
Branch Changes in Lowest Second Third Highest
Judicial Budget Quartile Quartile Quartile Quartile

None 5 5 3 4

Minor 3 3 6 7

Significant 3 3 2

Note: States in which significant changes were reported are: Alaska, California, Connecticut,
Hawaii, Iowa, Maryland, New Hampshire, New Jersey, and Vermont.
 91

Table 3-9
Percentage of State Court System Expenditures Funded by
State Rather than Local Governments, Related to
Degree of Difficulty in Obtaining Judicial Branch Funds

Degree of Difficulty

Lowest Second Third Highest

Quartile Quartile Quartile Quartile
Lower Half
Percentage 5
(10.9 — 30.6 percent) 6 6 6
State
Funding
Upper Half
(1971-72) 5 5 7
(30.7— 100.0 percent) 5

Note: Percentages are taken from Table 1-1.

Tables 3-9 and 3-10 suggest that difficulty scores are not related to the
scope of the state judicial budget. Thus it would appear that if a state took over
increasing responsibility for financing its court system, the judiciary would
not in most cases find it any more difficult to obtain funds from the legislature
than in the past.
A third and last factor external to the legislature is the budget organization
within the state court system itself. As the degree of internal judicial branch
coordination increases, the degree of legislative difficulty would be expected
to decrease, since budget requests subject to more thorough preliminary
screening within the judicial branch should be less subject to legislative
criticism. Table 3-11 shows that the data support this proposition. 7 '
The conclusion that centrally prepared or centrally reviewed budgets have
less difficulty in state legislatures than separately submitted or externally
prepared budgets is especially important. Earlier, analysis of Table 3-4 had
suggested that court systems without a statewide administrative staff had less
difficulty obtaining state funds than court systems with such statewide
administration. Table 3-11 suggests, however, that if state court adminis-
trative offices increase their level of involvement in the coordination or
preparation of a state judicial budget, such efforts may tend to reduce
legislative difficulty.
In summary, a number of variables are associated with state-by-state
variations in the degree of difficulty in obtaining legislative approval for
judicial budget requests. Legislative approval is more difficult to obtain when
a legislature has a joint budget committee rather than separate committees in
each house. When legislative approval is more difficult to obtain, discussion
 92

Table 3-10
Breadth of Activities Covered in State Judicial Budget, Related to Degree
of Difficulty in Obtaining Judicial Branch Funds

Degree of Difficulty

Lowest Second Third Highest

Quartile Quartile Quartile Quartile

Limited 5 3 3 4
Breadth
Itemized 2 2 3 3
of
State
Mixed General 2 4 3 2
Funding
General 1 2 2 3

Note: Classification of states by breadth of state funding is taken from Table 1-2.

between branches is more frequent, and the judiciary is more likely to initiate
such discussion. Legislative difficulty scores increase as executive difficulty
scores increase. However, when executive screening produces significant
rather than minor changes in judicial budget requests, difficulty in the
legislature decreases. Finally, as budget coordination increases within the
judicial branch, legislative difficulty decreases.
Each of these relationships is a correlation; certain characteristics of the
judicial budget process tend to be accompanied by certain outcomes. While
information about these correlations is instructive, the implications for action
are more limited. Correlation is not the same as cause. If two things vary
together, it cannot be concluded that to change one will necessarily change the
other. To go beyond the correlation of two things to an explanation of their
causal linkage requires: (1) analysis over time of variation that has occured
within the same states, and (2) multivariate analysis—the manipulation of
more than two variables at one time—to examine for example whether two
things are correlated because both of them are the result of a third underlying
variable. Y Thus, for example, an individual state court system that has moved
from limited to general state funding may find itself facing more difficulty in
the legislature, although legislative difficulty may vary from state to state for
reasons other than the comparative size or scope of court budgets. In the
meantime, however, the models and data that have been developed in this

Y For a famous example of the misuse of correlations in policy analysis, see the Moynihan report
on The Negro Family, which attributed differences in family structure to racial differences
rather than social class differences which cut across racial groups.
 93

Table 3-11
Degree of Budget Coordination within the Judicial Branch, Related
to Degree of Difficulty in Obtaining Judicial Branch Funds

Degree of Difficulty

Lowest Second Third Highest

Quartile Quartile Quartile Quartile
Central
Preparation 2 5 2 2

Method of Central Re-

view and
Judicial
Submission 6 3 2 4
Budget
Organiza-
tion Separate
Submission 1 1 4 3

External
Preparation 0 2 1 2

Note: Classification of states by method of judicial budget organization is taken from Table
1-3. States shown in two categories in Table 1-3 were eliminated from the external preparation
category and retained in the other category.

chapter may suggest some useful strategies for judicial budget makers and
eliminate some other strategies.
 External Relations in
The Budget Process:
Expenditure Control

The focus of previous chapters has been upon the process by which judicial
budgets are prepared, screened, and enacted. However, a number of impor-
tant elements of court financial organization involve what happens to the
budget after its enactment. These elements usually come under the category of
expenditure controls: the means by which public agencies administer their
funds—disburse monies, keep track of monetary flows, and evaluate fiscal
operations.
The surveys of state courts and state executive budget officers indicate that
judicial expenditure controls are generally well-established and working
smoothly. At the same time, however, the surveys indicate a substantial
amount of external control over judicial expenditures. Apparently, it is
normal for executive branch officials to participate in and determine how
expenditure controls function in state-funded courts. There is little indication
that state court systems have considered what limits are appropriate for such
executive activity.
The primary purpose of this chapter is to present survey and interview
findings of state practices in a number of areas of judicial expenditure control,
including accounting systems, pre-and post-audits, allotments, and transfers.
It is hoped that these findings can provide a basis for state courts to consider
whether specific expenditure control devices should be developed within the
judicial branch, or should at least be subject to judicial branch approval rather
than imposed by other branches of government.

Accounts and Audits

In The Book of the States, the Council of State Governments presents

information on budgeting proceses in the 50 states. Its table, elements of State
Financial Organization,' summarizes the "officials or agencies in charge of
specified aspects" of fiscal operation. But the material there applies to
executive branch agencies, and not necessarily to the judicial branch.
Therefore, state courts were asked to designate the officials or agencies in
charge of the same aspects of state judicial budget implementation and
control. State court responses could then be compared with reported executive
branch practice to see whether the judicial branch was subject to the same
controls or to a different set of controls.
First, state courts were asked who was "responsible for determining the
nature of the accounting system used by state funded courts." Twenty-one out

95
 96

of 31 responses (68 percent) designated an official or agency within the

executive branch of their state government.a In 6 of the 21 cases, the executive
official (e.g., auditor or comptroller) is directly elected by state voters. In one
state (Alabama), responsibility rests in a joint executive-legislative depart-
ment; one state (Arizona) reports that the responsibility is placed in an officer
of the legislative branch.
Some degree of judicial discretion or involvement in determining the
nature of the accounting system of state funded courts was reported in only 8
of the 31 states (26 percent). Five of those 8 states report that the
determination is made within the judicial branch—by state court adminis-
trators in Illinois, North Carolina, and Oregon, by the Supreme Court and the
state court administrator in Delaware, and by the chief justice and the state
court administrator in Wisconsin. Connecticut reports that the determination
was made jointly by the state courts' executive secretary and the elected state
comptroller. Nevada reports that its courts "usually follow [the] method
adopted by executive branch," and Hawaii reports that the judiciary "uses
state system as approved by the Comptroller." The last two responses were
classified as including a degree of judicial involvement because they imply that
the judicial branch has retained its option of accepting or rejecting the
accounting system used in the executive branch.
Second, state courts were asked who was "responsible for the budgetary
and related accounting controls used by state funded courts." Somewhat
more judicial responsibility was reported in this category, but the executive
branch remained dominant. In 18 of 31 cases (58 percent) responsibility is in
an agency or official of the executive branch. (In this case, only 2 of the 18 are
elected state officials.) In Alabama, responsibility again rests in an execu-
tive-legislative agency. In 11 states, responsibility rests in the judicial branch
itself, and in a twelfth state, Hawaii, the responsibility is shared by the court
system and an executive branch official. Thus, judicial involvement was
reported in 12 of 31 states (39 percent).
Third, state courts were asked who was "responsible for approving
vouchers for state funded courts." This question was designed to correspond
with the category of "voucher approval and pre-audit" in the general table
prepared for The Book of the States. It also provides information on an area
in which court administrators have in the past expressed specific objection to
executive intervention. Approval of vouchers is a standard technique for
controlling expenditures in any organization; all 31 responding court systems
report practicing some form of voucher approval. At the same time, it
provides opportunity for an official to review specific activities for which

a Each of the five questions analyzed in this section were answered by 31 state court systems
responding to the questionnaire. (The 31 are listed in the discussion of voucher audits below.)
Additional information on some expenditure control activities was obtained through interviews
and memoranda.
 97

reimbursement is sought. Thus, for example, when he was the court

administrator for the Los Angeles County Superior Court, Edward C. Gallas
recalls refusing to submit to a similar pre-audit conducted outside the judicial
branch. When he wanted travel funds to go to the state capitol on legislative
matters of interest to the court, he declined to accept county funds rather than
submit a statement of the purpose of his trip in advance since he felt that such a
requirement inhibited the freedom of action of the judicial branch. 2
The operation of voucher approvals in the 31 responding states shows a
higher degree of judicial independence than in any of the expenditure control
areas dealt with in this study. At the same time, however, the responses show
that executive branch officials are as frequently involved in voucher approval
for state courts as are those courts themselves. Thus, 13 of 31 states (42
percent) report that an executive official approves vouchers—that is, in
Arkansas, Delaware, Iowa, Massachusetts, Minnesota, Missouri, Montana,
Nebraska, Nevada, Rhode Island, South Dakota, Virginia, and West
Virginia. Fifteen of 31 states (48 percent) report that an official or officials of
the judicial branch do so—that is, in Alabama, Arizona, Connecticut,
Illinois, Kansas, Kentucky, New Hampshire, New Jersey, New York, Ohio,
Oregon, South Carolina, Tennessee, Vermont, and Wisconsin. The remain-
ing 3 states (Alaska, Hawaii, North Carolina) report that voucher approval
was handled by both executive and judicial branches; presumably the
judiciary screens vouchers first, with an executive disbursing office making
another check before payment is authorized.
Fourth, state courts were asked who was "responsible for issuing warrants
for state funded courts." (Warrants in this case refer not to such judicial
orders as search warrants or arrest warrants, but to fiscal war-
rants—authorizations for the payment of a specified amount of state funds to
a specific individual.) Twenty-six of 30 responding states indicate that an
executive branch official or agency does so (in 10 cases, an elected state
official); only 4 states—Connecticut, Delaware, Minnesota, and North
Carolina—report that warrants are issued by officials within the judicial
branch. b
Finally, state courts were asked who "conducts the post-audit of state
funded courts" and how frequently such a post-audit is conducted. None of
the 31 responding states report that a post-audit is performed by officials
within the judicial branch. Unlike other expenditure control functions,
however, auditing tends to be handled by state legislative branches as well as
executive branch agencies. Thus, 11 state courts report post-audits by the
legislative branch, 18 by the executive branch, and 2 by both legislative and
executive officials. Ten of the 18 executive branch auditors are popularly

b State courts were also asked who was "responsible for the actual payment of warrants." In no
case did any of the 29 responding states name an official of the judicial branch. Usually an
elected or appointed state Treasurer performs this function.
 98

elected.' The post audit function is thus entirely external to the judicial
branch, and performed by the other two branches.
The frequency of post-audits varies considerably. Annual audits were
reported in 13 states; biennial audits were reported in 8 states. Six other states
answering the question report longer intervals between post-audits: every 2 to
3 years; every 3 years; every 2 or 4 years; every 3 to 4 years; "approximately"
every 5 years; and "as time and personnel permit—last one 4 years ago."
"Alas," responds Vermont, an audit of each court is conducted with "no
regularity and too infrequently." 4 The budget officer for the New York State
court system reports that post audits "seldom" occur, and the Chief Deputy
Clerk of the well-funded New York Court of Claims reports that "never to my
knowledge" has a post-audit of this court been conducted.'
Table 4-1 indicates that there is some relationship between the frequency
of post-audits and the branch that performs the auditing function. As can be
seen, executive branch auditors perform their duties more frequently than
auditing agencies in the legislative branch. Note that executive branch post-
auditing tends to be characteristic of more populous states, legislative branch
post-auditing of less populous states, which indicates that the variable of size
may be the important one in explaining frequency of post audits: the more
populous states may tend to audit courts more frequently than the less
populous states. It may also be that court systems that are more highly state
funded are more frequently audited; however, Alaska reports a post-audit

Table 4-1
Frequency of Post-Audit of Judiciary, Related to Whether Auditing
Function Performed by Executive or Legislative Branch

Branch

Frequency Executive Legislative Both

Annual 11 2 0

Biennial 2 6 0

Less than every

two years 4 2 2

No answer 1 1 0

TOTAL 18 11 2
 99

"approximately every five years," and Vermont reports irregular and

infrequent audits. (Also note that the Colorado court system was audited in
1974 for the first time since general state funding of the courts began in 1970.)
The principle of external post-auditing is sufficiently well-entrenched and
accepted as a professional fiscal activity that its application to state court
systems is not likely to be considered an infringement upon the independence
of the judiciary. However, while external post-auditing may be as appropriate
for the judiciary as it is for other organizations, it may still have limitations on
internal usefulness. Post-audits are usually primarily financial—focusing
purely on the review of fiscal records. However, post-audits can also have a
management component, and a management audit may often be useful in
improving the ability of an organization to manage its resources efficiently.
Auditors trained in management techniques can often suggest methods for
more efficient conduct of an organization's business. A management audit for
the courts would require specialized knowledge of the distinctive organiza-
tional and functional characteristics of courts, regular contact with judicial
branch officials, and the trust and confidence of those officials. It would be
difficult to imagine many states being able to conduct effective management,
as well as fiscal post-audits of their state court systems under the present
circumstances. Thus, it may be appropriate for those state court systems that
are large enough and have a sufficiently high level of state funding to establish
internal management audit capabilities to supplement the work of external
auditors and increasingly shift primary responsibility for expenditure control
activity to the judicial branch itself.
The surveys, interviews, and correspondence in this study indicate that
internal management audits are virtually nonexistent in American state court
systems. In 1972, no system appeared to have any official whose primary task
was the performance of post-audits.c Court systems with general state
funding do in some cases have administrative professionals with major
responsibility for expenditure control apparatus: the Connecticut court
system has a chief accountant-auditor, and the Alaska court system has a
comptroller.° Colorado indicated in 1972 that it was considering individuals
for appointment to the position of internal auditor, and since then, it has set up
a two-man internal audit team that performs management as well as fiscal
audits.' In 1973, the Wisconsin court system received a Law Enforcement
Assistance Administration grant to establish a four-person Judicial Planning
Office, which provided a basis for development of management auditing as an
element in fiscal and administrative planning.°
Some management auditing could be effectively performed on a con-
tractual basis, if the court or court system is able to define objectives so that

C A complete list of professional administrative personnel employed by state court systems was
unavailable to confirm this, but partial data obtained in conjunction with the present study
suggests that this was the case.
 100

the contractor's work can be related to judicially defined criteria of effective

court management. Michigan reports that a "private auditor is employed by
the Supreme Court for the purpose of a post audit. Operational procedures
are reviewed and continued procedural changes are 'made to improve the
operation of the court." 9
State court systems have expressed satisfaction with the performance of
external auditors. The state court administrator's office in Louisiana provides
this perspective:

The Office of the Legislative Auditor serves as the external auditor for the judiciary as
well as all other state agencies. . . . Each audit performed by the Legislative Auditor
contains constructive criticism as well as adverse criticism of fiscal matters handled by
the agency audited. Such audit reports are a matter of public record and copies are
provided to the agency audited, as well as the Division of Administration [in the
executive branch], for guidance in assisting in its fiscal management operations.'°

The state court administrative office in California outlines post-auditing

activities in these terms:

Post-auditing in California is done by the Director of Finance on behalf of the

executive branch and by the Auditor General on behalf of the legislative branch. These
audits are done periodically and the reports are transmitted back to the branch for
which the particular auditing office works. Copies of the reports are given to the courts
and upon occasion changes in operating procedure result from the audit reports. In a
recent instance, an audit report from the Department of Finance was responsible for
the inclusion of funds so that a management consulting firm could be hired to look into
the operating procedures of the Appellate Court Clerks' Offices in California.
Audit functions could not be performed within the judicial branch and no changes
in California's present system of external auditing are recommended."

In contrast to these positive views, former - Idaho Chief Justice Henry F.

McQuade is critical of the "selective post-audit operations" of the Office of
the Legislative Auditor in Idaho:

There have been instances, however, of disagreement between external auditors

and the judiciary. The latest instance was last year when a financial audit of the clerk's
office was requested and never rendered. In its place was a far-flung so-called audit or
report on the judicial system prepared by the Office of The Legislative Auditor.' 2

Justice McQuade's comments suggest that external auditors may create

problems for courts through inaction rather than overzealousness. In fact,
external post-auditing is usually neither frequent enough nor critical enough
to be valuable in court management and court planning. If external post-
auditing were increased in frequency and took on more depth, however, it
could infringe on the administrative independence of the judicial branch.
Thus, it would be preferable to place the management audit function for
courts within the judicial branch, so that court management and planning can
 101

be more fully developed without imposing externally defined nonstatutory

criteria and priorities upon the courts.d
To summarize the findings in the five areas of expenditure control: at least
some state court systems perform four of the five functions. However, the
executive branches of the various state governments dominate the expenditure
control functions by retaining responsibility in most states for determining the
nature of the accounting system and the budgetary and related accounting
controls, issuing and paying warrants, performing post-audits, and approving
vouchers. In many states, court officers believe these functions could not be
adquately performed within the state court system, which thus necessitates
the adoption of executive branch control mechanisms. What may be most
important for the development and health of the concept of judicial
independence in fiscal matters is that the judicial branch not be placed under
executive branch fiscal supervision, unless the judiciary itself has chosen to
operate under such external guidelines. State court systems must accept and
use expenditure control techniques generally applicable to modern complex
organizations, but these techniques should be developed so that adminis-
trative discretion rests within the judicial branch. If the issuance of warrants is
a ministerial function, it can remain outside the judicial branch. If the post-
audit function is advisory and cannot be used to impose executive branch
criteria on court operations, it can remain outside the judicial branch. But
expenditure control functions that are neither advisory nor ministerial should
be applied to the judiciary by the judiciary, or at least with its consent and with
the option to exercise responsibility itself.
Post-auditing raised exactly these questions: To what extent is review and
• evaluation merely advisory? To what extent does a post-audit force an
external definition of organizational needs upon the courts? For example, the
Maryland State Court Administrator must negotiate from time to time over
the keeping of leave records and time records for court personnel. The
legislative auditors asked that the court conform to the policies of the state
Secretary of Personnel. "But we are not obliged to keep leave cards ... Judges
fix court hours, as part of their judicial function. We comply with state
working hours, but we must make decisions about working hours and
recordkeeping for leaves ourselves. The auditors do not want to treat courts
differently."" Thus, the efforts of a post-audit agency to impose general
governmental standards may take administrative discretion away from judges
when such discretion is an integral part of the exercise of their judicial
function. While it may be appropriate for an external auditor to suggest that
an executive branch technique would be as suitable and perhaps more

d The federal court system has also experienced difficulty in developing adequate management
audits. See Comptroller General of the United States, Opportunities for Improvement in the
Administrative and Financial Operations of the United States District Courts, Judicial Branch
B-133322, pp. 39-40 (Washington: U.S. General Accounting Office, 1970).
 102

economical, the judicial branch should have the means to evaluate the
effectiveness of its own techniques and procedures. When the judiciary
controls its own expenditure controls, it can exercise managerial responsi-
bilities without compromising judicial independence. It will have acquired
important new means to evaluate its operation and plan for its own future.
Edward B. McConnell, the long-time State Court Administrator in New
Jersey, describes the way in which the courts become a part of the expenditure
control apparatus of the executive branch and suggests some useful guidelines
to allow court systems to deal with external control over budget execution.

When the governor or the executive budget office announces a new policy for state
agencies, I routinely receive the memo that goes to 'department heads' giving
instructions for implementing the policy. If it announces a freeze in hiring personnel in
state agencies, I ignore the memorandum as beyond the authority of the governor or
chief executive officer. If it promulgates new travel regulations, I would ignore
requirements that travel requests be cleared in advance with the governor's office. But
if it simply establishes new forms, or sets up holidays for state employees, and I have no
compelling reasons for establishing different holidays or using different forms, I go
along with the prevailing exeuctive branch practice. What is important here is that the
judiciary decides for itself what administrative policies and procedures to follow."

Courts that are too small to have internal expenditure control capabilities
or court systems with too small a proportion of state funding to justify
separate internal controls may have difficulty reaching this goal of selective
adoption of executive branch practices. A court may authorize an executive
agency to handle some aspect of the expenditure control process, and later
find it has lost some of its administrative discretion. Consider the New York
Court of Claims:

Our court issues its own vouchers and purchase orders and the warrants are paid by the
comptroller. The comptroller, under his rules and regulations, has the authority to cut
vouchers submitted by us. . . . This function, executed by the comptroller, was at the
request of our court many years ago. However, once we asked the comptroller to
perform that function we gave up any right to question how he performed it. 15

And furthermore, the comptroller is a powerful figure in the state, so that the
court would have difficulty withdrawing from its original agreement." Thus,
courts and court systems may find themselves forced by internal adminis-
trative limitations to adopt practices and guidelines and to agree to executive
review, but doing so may retard future internal administrative development.

Allotments

Two specific expenditure control techniques have been given additional

attention in the present study. They are considered separately from the first
five categories, because they were included in questionnaires to both state
 103

budget officers and state funded courts. Therefore the data on these two
areas—allottments and transfers—are somewhat more extensive than the
data presented above.e
Another publication of the Council of State Governments, Budgeting by
the States, a 533-page volume published in 1967 for the National Association
of State Budget Officers, provides a thorough description of the executive
budget process. Its chapter on budget execution gives primary attention to
allotments:

One of the most widely used tools of budget execution is the periodic allotment of
appropriations.
Through allotments, expenditures are spaced throughout the fiscal year, thus
preventing an appropriation from being dissipated before obligations for the year are
met, and avoiding the necessity of deficiency appropriations. Depending on how it is
administered, the allotment may be an automatic control device only, or it may be a
means of careful expenditure planning related to expected program accomplishments.
Some form of budgetary allotment system is used in over forty states and
territories. In about three-quarters of the states using such a system, the allotment
period is three months. In Massachusetts a four-month period is used, and a six-month
period is used in Idaho, Mississippi, Oregon, and Pennsylvania (the three-month
period is also used for some agencies in the latter two states). In California the
allotment system is on a twelve-month basis and serves as a detailed line item work
plan. In Rhode Island some funds are on a monthly allotment basis.
. . . In one-third of the states certain agencies or activities are excluded from the
operation of the allotment system. Commonly excluded are legislative and judicial
appropriations, highway funds, funds not subject to appropriation, and funds carried
forward from year to year.
State administration of allotment systems is basically similar. After the appropria-
tion acts have been enacted, the agencies are officially notified of the amounts of
money available to them for the ensuing year or biennium. Prior to the beginning of the
fiscal year they prepare proposed work plans and allotment requests. In some cases,
such as New Jersey, a proposed allotment plan is submitted with the original budget
request, and needs only to be adjusted to the appropriation.
. . . Allotment requests and work plans are reviewed by the budget agency for
conformance with appropriations, legislative intent and probable patterns of ex-
penditure. In most cases the budget director has the power to recommend changes in
the allotment request. Approval rests with the governor or other budget execution
authority. The operating agencies are then informed of the approved allotment plan,
which becomes the authorization to the state accounting agency for approving
disbursements.''

This description of the allotment process indicates the extent to which

allotments can play an important role in regulating expenditures and also in
management planning activities. Two recommendations follow when an
allotment system is used in the judicial budgetary process: (1) since an

e The data in this section should also have a higher degree of validity, since they are drawn from
sources in two differnt branches. The responses of 31 state court officials reported in the
preceeding sections sometimes appeared to be inconsistent with the data presented in The Book
of the States.
 104

allotment system can be a valuable aid in organizational planning, state court

systems that do not use allotments (or do use them for planning purposes)
should consider doing so; and (2) since an allotment system involves the
making of important internal management decisions about the allocation of
funds, it should operate entirely within the judicial branch not through the
executive branch.
These recommendations must first be assessed in relation to the existing
allotment practices in state courts. To what extent are state court systems
exempt from executive allotments? If the executive branch establishes
allotments, do disagreements or conflicts arise?
Both executive branch budget officers and state-funded courts were asked
about allotments. Executive budget officers were asked: "Does the executive
branch establish allotments for funds appropriated for the judiciary?" Twenty
respondents said yes, thirteen said no, and one (California) did not know.
Thus, 59 percent of the executive branch officials replying indicate that the
court system is subject to allotments established outside the judicial branch.
One of those 20 states, Minnesota, reports that the "Chief Justice of the
Supreme Court voluntarily has submitted his operating budget for review and
approval."" Of the 13 states that responded in the negative, 5 have no
allotment systems operating in any branch, and 2 states (Texas and Vermont)
have limited systems. This indicates that the judiciary is exempt in practice
from only 6 of the full 26 allotment systems (23 percent)."
If the executive budget officers indicated that the judiciary was subject to
allotments, they were then asked whether "there have been disagreements
between the executive and judicial branches over allotment decisions." Not
one respondent reported any disagreement. Eighteen out of the 20 replied no,
and 2 did not respond. One state (Wisconsin) indicates that allotments are
established "but only as[an] accounting device [and] not for control purpose.
[We have] no authority for [the] latter." The absence of reported dis-
agreement, combined with the Wisconsin statement, indicates that allotments
are probably not used for planning purposes in those states in which the
executive branch establishes allotment. This reduces the likelihood that
allotments will be used to exert external pressure that conflicts with the
principle of judicial independence. But at the same time, it reduces the value of
an allotment system for control and planning purposes.
The state-funded courts were asked similar questions: "Is the judicial
branch subject to a system of quarterly allotments for apportioning appro-
priated funds?" Of 31 respondents, 16 said yes, 12 said no, one state did not
know, and 2 states (Nebraska and South Dakota) reported an allotment
system other than quarterly allotments. Five of the 16 states that had
quarterly allotments (Hawaii, Minnesota, Tennessee, Vermont, Virginia)
report that the system is established within the judicial branch. The other 11
states report that quarterly allotments are established within the executive
 105

branch, usually by the state budget office.f Nebraska reports that the
judiciary is subject to an "extremely complicated" procedure for apportioning
funds established by the state budget office.
Finally, state-funded courts were asked when the judicial branch last
"disagreed with an allotment decision" made by an authority outside the
court system, and what was at issue. None of the 11 states to which this
question applied cited any disagreement. Responses indicate that executive
authority is accepted, but that the executive usually defers to recommenda-
tions of the judiciary. For example, Missouri reports that the "normal
practice" is for a state agency to set its own allotments for the fiscal year "with
approval to be granted by the budget office." North Carolina reports that "the
allotment is granted as requested" by the court administrator's office. In New
Jersey, the court administrator's office has a more limited role; it is
"consulted" by executive officials who establish allotments, and reports no
"major disagreements." In Nebraska, "allotments have been changed rather
easily in the past, with no particular problems."'
When the executive branch and judicial branch questionnaires are
collated, some discrepancies develop. Executive branch budget officers in
Delaware, Illinois, Massachusetts, Rhode Island, Tennessee, and Virginia all
report that the executive branch establishes allotments for judicial appropria-
tions, while court administrators in the first four states report that they are not
subject to allotments, and the last two state courts report that allotments are
established by a budget officer within the judicial branch. Court adminis-
trators in Arizona, Arkansas, and Nevada each report that the judiciary is
subject to quarterly allotments established by the executive branch (the
Commissioner of Finance in Arizona, the Department of Finance and
Administration in Arkansas, and the office of the Budget Director in
Nevada), but the three executive agencies denied doing so when surveyed for
this report. 21 By reassigning inconsistent responses and combining consistent
ones, Table 4-2 summarizes the data on allotment authority.
The data indicate that most states that have allotments do not exempt the
judiciary. Whether the judiciary is subject to allotments or is exempt from
them is not related to the magnitude of state funding; state court systems with
predominantly local funding are just as likely to be subject to executive branch
allotments as are state-funded court systems. Since allotment requirements
do not appear to be related to the nature and scope of judicial branch
expenditures, few states would be expected to use allotment requirements to
facilitate effective fiscal planning in court systems.

f These eleven states are Alabama, Arizona, Arkansas, Connecticut, Iowa, Kentucky, Missouri,
Nebraska, Nevada, New Jersey, and North Carolina. The twelve state court systems reporting
no allotments are Alaska, Delaware, Illinois, Kansas, Massachusetts, New Hamphsire, New
York, Ohio, Oregon, Rhode Island, South Carolina, and West Virginia.
 106

Table 4-2
Allotment Authority over Executive Agency and Judicial
Branch Appropriations, by Numbers of States

Judicial Appropriations

Subject to Subject to
Executive Internal Not Subject Don't
Allotments Allotments to Allotments Know
Subject to
Allotments 24 2 5 7

Execu- Subject to
tive Limited
Agency Allotments 0 1 3 0
Appro-
pria- Not Sub-
tions ject to.
Allotments 0 0 8 0

Note: Except for Arkansas, inconsistencies were resolved by showing state court systems subject
to executive authority. In this way, state budget officers' responses are accepted as valid in 7 of 9
instances. This is done not because state court responses are seen as having lower validity, but
because if either the executive branch believes it has allotment authority, or the judicial branch
believes the executive has such authority, the potential for its exercise exists.

How should an allotment system be authorized so that it both facilitates

planning and maintains the administrative independence of the judiciary?
Federal statutory provisions on apportionment of appropriated funds may
provide the best model for the states. Federal law requires apportionment, but
it authorizes use of different time periods and gives discretion to officials
within each of the three branches to establish their own system. Thus judicial
appropriations "shall be apportioned or reapportioned in writing by the
officer having administrative control of such appropriation."" That officer
may apportion judicial funds by any combination of time periods, activities,
or objects, governed only by the general purposes of the statute: to prevent "a
necessity for deficiency or supplemental appropriations" and "to achieve the
most effective and economical use" of appropriated funds." Thus, the
judiciary is not exempt from apportionment provisions; but those provisions
may only be enforced internally, by a judicial administrative officer. In the
proper setting, many state court systems might benefit from similar legisla-
tion to encourage budgetary planning within a framework that ensures the
independence of the judicial branch.
Were the judiciary subject to apportionment decisions of an executive
budget office, its independence would be diminished, because an allotment
 107

system could be used to implement major administrative policies. Thus, the

federal Office of Management and Budget could effectively reduce federal
spending by holding allotments low enough during the year to produce a year-
end surplus that could be turned back to the federal treasury. One eastern state
trial court administrator reported that his court has suffered from the political
use of allotments by county budget officials. Judicial allotments are held down
during the year so that at the end of the fiscal year, judicial appropriations can
be transferred to county executive departments to cover deficits accumulated
by patronage appointments in those departments. Each year, the trial court's
appropriation is padded sufficiently to allow these transfers while holding
down the original appropriation to executive departments. 24 These examples
suggest the uses to which an allotment system can be put and re-enforce the
recommendations made earlier in this section: Court systems must be exempt
from executive branch allotment decisions, but should develop their own
allotment systems as important management techniques.

Transfers

One last element of expenditure control must also be considered in this

discussion of the judicial budgetary process: the transfer of appropriated
funds within the judicial branch. The budget is not only a technique enabling
an agency to plan its activities for the coming fiscal year; it is also a technique
whereby legislative and managerial authorities can define precisely what
activities an agency can perform for that fiscal year. An appropriations bill
can only limit an agency's discretion, if however that agency follows the
guidelines of the bill. Legislative guidelines vary in detail and focus from state
to state. Thus, a legislature may enact a lump-sum budget that appropriates
funds for a program or unit or element of the budget (the judicial system as a
whole, or a specific court, or a public defender unit, or an administrator's
office) and does not break the appropriation down into objects of expenditure.
Most state budgets still refer at some point to traditional objects of
expenditure. Those object categories focus on three major types of ex-
penditures: personal services, other operating expenses, and capital outlay. In
practice, these three categories are expanded to some six objects. Travel is
broken out of personal services. Other operating expenses are divided into
contractual services (rent, utilities, printing, insurance) and commodities
(supplies and materials). Capital outlay (equipment) is separated from capital
improvements (land and structures).g The most extreme form of legislative
specificity is the line-item budget that breaks major objects of expenditure
into detailed subobjects or items such as the salaries of each class of employee

g No effort will be made to use conceptual labels such as functional or purposive to contrast
object classification with program classification.
 108

(judge, law clerk, reporter, secretary), the specific types of contractual

services and commodities purchased, and the pieces of equipment to be
acquired from capital outlay funds.
Once dollar figures are placed in budget categories, limits are imposed
upon an agency's discretion to transfer a surplus from one category to
another. Transfers across programs or major administrative units—for
example, from one court to another—are unusual. Transfers across objects of
expenditure are more common, although it is most difficult to move funds in
or out of personal service lines (e.g., to buy a new typewriter with the money
saved because a secretary wasn't replaced for a month). When legislative
appropriations are broken down into more detailed items, transfers are most
common.
Effective management calls for adherence to budget plans and the
guidelines imposed by legislative appropriations categories. But it also
requires some mechanism for facilitating transfers of funds when circum-
stances not anticipated before the start of the fiscal year interfere with fiscal
plans. In the judicial budgetary process, however, mechanisms for the transfer
of funds can once again raise questions of judicial independence—if transfers
require the approval of an agency or official in the executive branch.
State court systems were asked about both aspects of transferring funds.
First, the questionnaire asked: "How much discretion does the judiciary have
over the transfer of state funds across budget categories?" Responses were
distributed across all four of the suggested alternatives:

1. No funds may be transferred from one budget category (line) to another (7

respondents);
2. Funds may be transferred in certain limited situations (6 respondents);
3. Funds may be transferred in a number of situations (5 respondents);
4. Funds may be transferred whenever necessary (9 respondents).

In addition, four respondents checked two of the four alternatives.h

Overall, the total responses indicate that limitations on the transfer of
judicial appropriations are common. Equally common is the requirement for
external approval of transfers. The questionnaire asked state courts: "If funds
can be transferred, must prior approval of each transfer be obtained from
official(s) outside the judicial branch?" Nineteen states responded yes, 7

h However, the vagueness of the term "budget category" limits the validity of these responses;
the extent to which transfers are allowed may depend upon how specific original budget
categories are. In most cases, the term "budget category" was interpreted as "major object of
expenditure."
 109

responded no. i Of the 19 states requiring external approval for transfers, (73
percent of the states permitting any transfers), 9 require approval of the state
budget office or budget director; 2 require approval of the governor; 1 (Iowa)
requires approval of both the budget director and the governor; 2 require
approval of other executive branch authorities, (the governor and executive
council and comptroller in New Hampshire; the Board of Examiners in
Montana); and 5 (Alaska, Arizona, Connecticut, New Jersey, South Caro-
lina) require joint approval from both executive and legislative branches, or a
joint executive-legislativeagency. Six of the 7 state court systems that do not
require external approval for transfers (Arkansas, Hawaii, Oregon, South
Dakota, Virginia, Wisconsin) may be termed high independence systems, in
that transfers may be made both "whenever necessary" and without external
approval."
A sampling of responses from state court systems illustrates some of the
complex arrangements.under which fund transfers may be made. In Illinois,
transfers between line items are limited to 2 percent of the total agency budget;
and transfers to the personal services line item are prohibited. South Carolina
allows transfer "from one line item to another within overall budget
appropriation" with the approval of the Budget and Control board, a joint
legislative-executive agency. The Tennessee Court Administrator reports
that "I suppose we could arbitrarily transfer funds but we always cooperate
with F & A [the executive branch Department of Finance and Adminis-
tration]." Vermont reports that transfers are governed by statutory limita-
tions placed on all branches of government. Approval is required of the
governor through the Office of Budget and Management if under $10,000 is
involved; "if $10,000 or more, by permission of Emergency Board." Missouri
allows transfers by line, but not across objects of expenditure. ("The
Comptroller has not allowed [this] even when Fiscal Affairs has approved.
Line item control is being pushed by legislature, but usual practice is to
[accept transfers] within limits of budget category.") Arizona requires
approval of the Commissioner of Finance, "except personnel funds which
require approval of [the] Joint Legislative Budget Committee." In Con-
necticut, no funds may be transferred "except upon approval of the Finance
Advisory Committee . . . which consists of [the] Governor, Lieutenant
Governor, Treasurer, Comptroller, two members of Senate and three of
House Appropriations Committee. However," reports the Connecticut court
system, "this presents no real problem because appropriations are not made
to each court or function, but rather in a lump sum to three categories:
personal services, other expenses and equipment. Also, all positions are

i Five state court systems did not respond, apparently because transfers were not allowed and
therefore the question was deemed not applicable. Note, however, that 2 of the 7 states that
indicated in the previous question that no transfers were permitted answered this question.
 110

funded so that extra funds can accrue from lapsed/unfilled positions."

The Connecticut situation combines two characteristics of fund transfers
in state court systems. On the one hand, requirements for external approval
produce situations where state courts must justify specific administrative
plans or needed changes to powerful boards and officials of executive and
legislative branches. On the other hand, such approval is often a matter of
routine. Notes Rhode Island: "In practice court transfer requests are always
approved." Writes Kentucky: Funds are available "[g]enerally when needed if
balance exists for transfer." In this sense, however, the operation of
transferring funds within the judicial branch may be roughly the same as the
fund-transfer operations of executive agencies.
The responses of executive branch budget officers generally reflect this
conclusion. Transfers occur in Minnesota "to the same extent as any other
agency in the allotment system. Nothing is at issue, usually it is a change in
plans by the court." The latest transfer approved by the Arizona executive
budget office "was to enable court to complete authorized project for which
no funds [were] received." In Louisiana, executive officals approved transfer-
ring funds for an "increase in pensions and widows' benefits due to
unanticipated death or retirement." In Maine, executive branch approval is
required if funds are transferred between personal services, capital or "all
other"—the only three categories involved—while in New Hampshire, "any
transfer between line items of budget as adopted by legislature requires
approval." All of these practices, however, apparently contrast with the
practice reported in the state of Washington: "This [transfer of funds] has not
been done and we don't believe it can be done. Once an appropriation is made
to an element of the judicial branch it cannot be used for any other purpose."J
The aggregate of executive branch responses re-enforces the picture of
widespread executive involvement. Budget officers were asked: "Is the
executive branch required to approve transfers of state funds across judicial
budget categories?" Twenty answered yes; 2 responded "sometimes"; 11 said
no; and 1 did not know. Thus, two-thirds of the responding states have some
form of required external approval. And while one-third of the states do not
have such a requirement, at least one (Washington) has no transfer provisions.
Combining responses from executive and judicial branches yields data for
43 states: 28 require external approval; 11 do not; and four report no
provisions for transferring funds. Once again, some discrepancies exist in the
data; in this case, the difficulty of writing a question that can be asked in each
of the 50 states may contribute to some of this variation. Since different states
use different kinds of budget categories (line items, programs, elements),

Note however that the term "element" may refer to something broader than a line item or
object of expenditure; it may refer to a court, and few states allow transfers from one court to
another. In program budget states, each court is often a separate "program," and transfers
may be permitted within such programs.
 111

different states may also interpret a single question in different ways.

Nevertheless, it is clear that the transferring of appropriated funds within the
judicial branch is an activity that generally involves other branches, usually
the executive branch, and gives external authorities discretion over quite
specific aspects of judicial administration. From the viewpoint of a theory of
judicial independence, the usual state practices provide too much opportunity
for executive branch intervention in judicial affairs.
From the viewpoint of judicial administrators, however, how serious a
problem is the transferring of funds? If one could arrive at an overall answer, it
might be this: Fund transfers are perhaps more of a problem than any other
aspect of budget execution, but they are far less of a problem than those
involved in the process of obtaining appropriations. Thus, Chief Judge T.
John Lesinski of the Michigan Court of Appeals works hard at obtaining the
appropriations necessary for his court's work, but avoids transfer problems
by arguing that no such restrictions apply to his court: ". . . we regard all
appropriations to the courts as lump-sum appropriations even if the Legisla-
tufe tries to line item them.' 26 During his years as New Jersey State Court
Administrator, Edward McConnell considered fund transfers an important
question and was especially concerned about the insufficient freedom of
courts to move funds in and out of personnel and other accounts. k
The transfers discussed thus far are all intradepartmental. They involve
reallocation of funds appropriated to the judicial branch. Many states also
have provisions for interagency or interdepartmental transfers, so that an
agency many augment its appropriations, usually by demonstrating the
existence of an "emergency." Requests for emergency funds must be
approved by an executive official or joint executive-legislative board. The
Louisiana court administrator's office explains the system in that state:

If during the budget year some unanticipated need arises for funding within the
judiciary and represents an emergency requirement, a request may be made of the
State Board of Liquidation for the needed funds. This Board is designed to care for
emergencies during the budget year and is empowered to provide such emergency
funding under certain circumstances. The Judicial Administrator usually appears
before the meeting of the Board when a state court funding matter is considered."

The Louisiana Board of Liquidation is "composed of the Governor, Lieuten-

ant Governor, Speaker of the House of Representatives, Chairmen of the
House Appropriations and Senate Finance Committees, the Auditor, and the

k Most questionnaire responses from state court officials did not express such concerns.
McConnell expressed his views in a personal interview. Note in this regard that open-ended
questions and follow-up questions asked in an oral interview are more likley to elicit examples
of day-to-day problems than are questions in a standardized questionnaire. Therefore, since the
present study was limited to mail questionnaires and only a small number of interviews, many
difficulties in the judicial budget process may be deemphasized.
 112

Treasurer." It disburses a "general contingency fund of $1.0 million."" In

practice, emergency funds are distributed by the Board, so that agencies need
not seek supplemental appropriations through the full appropriations pro-
cess.'
Since emergency funds must come from outside the original appropriation
for the judicial branch, they represent a problem different from intrabranch
transfers. Judicial fiscal independence requires that internal transfers be
authorized by statute, so that courts are not required to justify their internal
management activities before executive officials. Judicial fiscal independence
cannot be invoked to allow a state court system to dip into an emergency fund
outside the judicial branch. However, the existence of emergency funds gives
rise to yet another set of external relationships between court officials and
fiscal authorities in other branches. Experiences in the Maryland court system
suggest that the existence of an emergency fund increases the contact between
judicial and executive branch officials. Maryland's state court administrator
argued in 1972 that transfers are not difficult to obtain because his office
maintains good relations with executive budget officials:

I estimated $350,000 for costs of indigent defense required by law. When this figure
was cut in the budget, it didn't work. My figure was accurate, so later we had to go to
the Board of Public Works, which consists of the Governor, the Treasurer, and the
Controller, to obtain help from the general emergency fund."

And the Maryland emergency fund would have to be tapped in 1975 as a result
of executive intervention in initial budget decisions. The legislature created
five Circuit Court judgeships, but none were funded. The court system
requested that salaries be included in a supplemental appropriation bill, but
the governor refused to do so, apparently preferring to hold down appropria-
tions and draw on his emergency funds once the judgeships are filled." Thus,
the court system, to obtain necessary funding, must accommodate the
governor and became a party to the exercise of executive discretion over the
transfer of appropriated money.
In summary, the need to transfer funds within the judicial branch is likely
to increase as states fund a greater range and variety of judicial activities.
When a state funds trial court operations and a trial court conducts a
campaign to reduce its backlog of jury cases that depletes funds for the

In some states, legislative sessions are too short or infrequent to make supplemental
appropriations feasible, increasing the likelihood that an emergency fund system would be
used. The frequent need to transfer funds is also related to the use of supplementals.
Legislatures may attempt to hold down annual or biennial appropriatons to maintain a low
base and may then rely on supplemental appropriations to meet new demands. Courts may then
prefer to use the transfer process to obtain needed funds, rather than go through the whole
appropriations process necessary for supplemental funds, if any transferable surplus is
available. At the same time, the legislature may require that the courts first attempt to transfer
funds, and only then ask for a supplemental.
 113

payment of jurors, still another occasion arises requiring executive branch

approval for the internal reallocation of judicial appropriations. At the same
time, if court systems are allowed more internal flexibility to transfer funds,
increased state funding could result in reduced requests for emergency funds.
In any event, the need for internal reallocation of funds should not require that
court systems justify transfer requests before executive budget officials. And
the existence of emergency funds should not place courts under unnecessary
executive discretion. Executive involvement in judicial branch expenditure
control raises the same questions of principle and practice raised by executive
involvement in judicial branch budget review. Both judicial independence and
judicial administrative responsibility are best developed when executive
involvement is sharply curtailed.
 State and Local Funding:
Trends and Comparisons

Thus far this study has focused upon the process by which court systems
obtain and control funds from state-level authorities. However, three dollars
out of every four spent on nonfederal courts in the United States come from
local governments rather than state treasuries. Our assumption has been that
state funding is nevertheless important and is likely to grow in importance as
more states take on fiscal responsibilities formerly exercised by counties. It is
time to examine this assumption: To what extent is there a trend toward state
financing?

The Limited Trend toward State

Financing

Data on judicial expenditures by state and local governments in the 50 states

show only a slight and uneven trend toward increased state financing of
judicial activity. The most useful data on distribution of funding has been
collected since 1968 by the U.S. Bureau of the Census for the Law
Enforcement Assistance Administration, and published annually in the
volume, Expenditure and Employment Data for the Criminal Justice System.
The percentage figures over a four-year period, which are shown in Table
5-1, indicate that the overall proportion of judicial activity funded by states
rather than localities increased only slightly from 26.3 percent in 1968-69 to
28.3 percent in 1971-72. The slight upward trend was not steady: the state
share increased from 26.3 percent to 27.6 percent, then declined to 26.7
percent in 1970-71 before moving up to the most recent figure of 28.3
percent. Major shifts toward or away from state financing are rare. Only two
states shifted more than 25 percent. Those two, Colorado and New Mexico,
were the only states in that period to adopt a system of state court financing
through a centrally prepared court system budget. Three other states
fluctuated by over 15 percent: Maryland increased its percentage of state
funding, and Kentucky and New Hampshire showed decreases. In all, 27
states showed increases in percentage of state funding, and 23 showed
decreases.
During the four-year period for which figures are available, 9 of the 10
most populous states show very little change. Five of these states show slight
declines: California (13.4 percent to 11.5 percent), Florida (17.9 percent to
17.8 percent), Illinois (33.1 percent to 32.4 percent), Massachusetts (22.4

115
 116

Table 5-1
Judicial Expenditures Funded by State
Rather than Local Governments, as Percentages of Total
Judicial Expenditures in Each State, 1968 to 1972

STATE YEAR a

1968-69 196-70 1970-71 1971-72

Alabama 22.8 24.1 25.4 28.3

Alaska 92.9 94.2 96.4 97.0
Arizona 12.4 14.0 13.3 13.5
Arkansas 46.9 39.9 38.0 32.6
California 13.4 12.0 10.9 11.5
Colorado 16.8 55.8 69.6 73.7
Connecticut 99.3 99.8 99.9 100.2
Delaware 67.8 78.2 81.1 79.9
Florida 17.9 17.6 16.7 17.8
Georgia 17.3 22.7 15.3 15.4
Hawaii 99.8 100.0 100.0 100.0
Idaho 56.5 57.4 49.5 56.4
Illinois 33.1 35.0 32.9 32.4
Indiana 19.3 22.6 21.4 24.7
Iowa 24.0 23.1 22.9 28.4
Kansas 28.9 36.0 31.2 31.6
Kentucky 71.5 66.0 53.2 51.0
Louisiana 35.3 33.6 28.2 24.3
Maine 55.8 64.1 61.2 62.2
Maryland 40.5 47.6 48.2 61.7
Massachusetts 22.4 14.9 17.5 19.4
Michigan 17.0 19.0 15.9 18.8
Minnesota 21.1 18.8 17.5 18.3
Mississippi 27.4 27.5 32.0 36.0
Missouri 33.6 33.6 32.7 31.3
Montana 29.2 28.6 30.0 28.7
Nebraska 40.4 30.4 32.5 27.7
Nevada 17.0 25.5 25.3 25.8
New Hampshire 50.9 38.7 40.4 30.7
New Jersey 24.5 24.8 24.8 22.8
New Mexico 46.5 84.3 84.1 87.1
New York 20.3 21.8 21.2 20.7
North Carolina 91.4 85.2 88.5 91.7
North Dakota 24.9 27.7 27.2 29.2
Ohio 12.9 13.9 12.9 13.1
Oklahoma 44.4 53.2 38.6 53.6
Oregon 26.8 29.9 27.0 26.5
Pennsylvania 16.2 22.0 22.2 30.6
Rhode Island 99.5 96.1 96.4 97.9
 117

South Carolina 18.0 17.9 14.9 13.4

South Dakota 25.2 28.4 29.6 27.5
Tennessee 25.9 19.5 21.4 21.7
Texas 18.8 20.5 18.4 20.7
Utah 57.0 51.7 50.2 45.7
Vermont 100.0 99.9 98.6 94.9
Virginia 47.2 46.6 48.5 46.3
Washington 16.9 19.9 17.7 17.6
West Virginia 41.5 38.0 33.0 37.9
Wisconsin 30.9 33.3 34.2 32.9
Wyoming 36.0 42.4 47.1 42.0

Total, All States 26.3 27.6 26.7 28.3

a Years represent expenditures from July Ito June 30.

Source: Percentages are derived from dollar amounts for "Judicial Activities" in Law
Enforcement Assistance Administration and Bureau of the Census, Expenditure and Employ-
ment Data for the CriminalJustice System (Washington: U.S. Government Printing Office). The
report is issued annually, approximately 18-24 months following the close of each fiscal year. The
judicial data appear in Table 5 for 1968-69 and 1969-70 and Table 6 in 1970-71 and 1971-72.

percent to 19.4 percent), and New Jersey (24.5 percent to 22.8 percent). Four
of the 10 largest states show slight increases: Michigan (17.0 percent to 18.8
percent), New York (20.3 percent to 20.7 percent), Ohio (12.9 percent to 13.1
percent), and Texas (18.8 percent to 20.7 percent). Only Pennsylvania shows a
substantial increase in state funding (16.2 percent to 30.6 percent). Note also
that only 2 of the 10 largest states (Illinois and Pennsylvania) contribute state
funds to judicial activities at a higher proportion than the national average.
California, the most populous state, funds its court system with a smaller
proportion of state money than any other state in the entire country, just
ahead of Ohio, South Carolina, Arizona, and Georgia.
In using percentages based on the Census Bureau surveys, limitations on
the validity of the data should be noted:
I. Data on local expenditures are based on a sample only. No effort was
made to survey all local governments. However, the samples are large; the
1968-69 figures "were developed in part from responses to a mail canvass
questionnaire sent to a sample of approximately 6,200 local governments,"
and beginning in 1970-71, "a larger and more reliable sample" was used.'
Field visits are used to confirm and supplement mail questionnaires.
Therefore, the two most recent fiscal years can be compared with each other
more confidently than with the two earlier fiscal years. For example, data
collection problems may have led to initial underreporting of local court
 118

expenditures in Kentucky, New Hampshire, Nebraska, and Arkansas.

2. The expenditure figures do not indicate state-by-state differences in the
extent to which activities are defined as "judicial." In some states, public
defender services are part of the judicial budget; in others, they are not. In
some states and localities, probation services are part of the judicial budget; in
others, they are not. However, in both cases, the Census Bureau does not
classify those items as judicial expenditures. The Census classifications
provide more accurate state-by-state comparison of judicial expenditures, but
they hide the extent to which some state court systems and local trial courts
have been able to subsume a wider range of activities within the judicial
branch.
3. The most recently availble data extend only to the middle of 1972.
They therefore do not reflect more recent changes, including the approval of
judicial articles authorizing full state financing for South Dakota (approved
November 1972), Alabama (approved December 1973), and West Virginia
(approved November 1974).a
In summary, the Census figures provide only one indicator of the extent to
which a trend toward increased state financing of courts does or does not exist.
At the same time, however, the figures are the most thorough available and
the most useful for state-by-state comparison. While the figures do not extend
beyond June 30, 1972, they suggest that few additional changes would be
expected in succeeding fiscal years.
Another method for examining trends in the state-local distribution of
judicial funding is to analyze changes in the breadth of activities covered in
state judicial budgets. In Table 1-2, which broke down state judicial funding
by activity rather than by percentage, court systems were placed in four
categories: Limited State Funding, Itemized State Funding, Mixed General
State Funding, and General State Funding. Questionnaire responses and
correspondence show a slight, but clear, trend toward funding an increased
number ofjudicial activities by state governments. A few states have moved in
recent years from one of the four categories to another, and in all cases, those
states have moved to a category in which the state government funds more
judicial activities. The largest jump was in Colorado, which moved from
limited to general state funding. New Mexico also moved to general state
funding from one of the less inclusive categories. Maryland moved from
itemized to mixed general state funding following creation of a statewide trial
court of limited jurisdiction (the District Court) supported entirely by state
inds. A similar change occurred earlier in Maine.
2 Pennsylvania moved to mixed general state funding in 1971 by making
direct state grants to counties "in reimbursement of costs incurred by such

a The 1972 Florida court reorganization did not include general state funding, but its impact may
increase the percentage of state funding for the court system. That change is also not reflected
in the Census Bureau data.
 119

counties in the administration and operation of the courts." The Legislature

provided $8 million to counties for this purpose in the Appropriations Act of
1971. That sum was then distributed to counties on a prorated basis. Since the
"total incurred costs" in 1971 for each of the 67 counties composing the state's
59 judicial districts was over $66 million, each county received a grant equal to
just over 12 percent of its expenditures on the courts.'
The Pennsylvania court administrator reported efforts to increase the
state grant:
The year [1972], the Governor's budget originally provided for an appropriation of a
much larger sum of money, but, in order to secure approval of the budget in the
legislature, it was necessary to reduce the amount allocated to reimburse the counties
for their costs incurred in the administration of the courts. At the present time, the
amount of the appropriation is $17 million; however, it is anticipated that this may be
substantially increased in future years. 4
Thus, the state grant would be doubled in the second year, with the
likelihood of gradual increases varying in size with the interest of executive
and legislative budget makers. It is unlikely that the reimbursement grants
would go down in size, since such a move would squeeze the treasuries of all 67
counties and thereby convert an issue of adequate funding of the courts into
one of adequate state support of the counties.
Pennsylvania is apparently the only state using such a reimbursement
system as a way of increasing state-level financing of the court system. Most
states that have increased the breadth of state financing (e.g., Colorado,
Maryland, North Carolina, South Dakota) or are considering increases (e.g.,
New York, Michigan, Massachusetts, Wisconsin) have tied state financing
into increased state-level supervision of trial court expenditures. The move-
ment to general state funding involves placing judicial budgetary authority in_
a statewide administrative office. The movement to mixed general state
funding by the creatioo of statewide courts, such as the Maryland District
Court, included the creation of a statewide administrative and budgetary
apparatus for the District Court. Increased state financing has, thus, been
seen and used as part of the effort to create a viable state judicial system. Only
in Pennsylvania has an increase in the.breadth of state financing been used to
decrease the burden on county treasuries without a simultaneous increase in
budgetary authority of state judicial administrators.b
The move toward state financing of local courts contrasts with the
movement toward state financing of local public education. Most proposals
for state aid to local school districts are proposals for reimbursements and

b There are other instances of state financing being increased with supervisory authority
unchanged; for example, paying a larger part of trial judges' salaries or paying salaries of
additional trial judges. However, such increases would be reflected in the percentage of state
financing, but not in the breadth of activities financed by the state, since the state is only
increasing its contribution to an already funded activity.
 120

grants (as used for the Pennsylvania courts), and debate centers less on issues
of state control than on issues of what allocation formula should be used.
Recommendations for state judicial funding either stress or assume that trial
courts are state rather than local institutions. Recommendations for state
educational funding either stress or assume that public schools are local rather
than state institutions. Perhaps the fact that issues of state court financing are
tied to issues of state court organization accounts for the negligible change in
the aggregate percentage of state rather than local funding of courts.
Another technique for increasing the breadth of judicial activities funded
at the state level is the exercise of discretion by state court administrators to
assume costs of new judicial expenditures. Former Maryland Court Adminis-
trator Frederick Invernizzi described how the state court system assumed the
cost of placing public notices in newspapers, a cost deriving from require-
ments of the United States Supreme Court's decision in Boddie v. Con-
necticut.' the first year cost was $35,000. Invernizzi's reasoning was that state
payment of these new costs was "a step forward," because it increased the
fiscal responsibilities of the state judicial administrative office. That office has
also assumed the cost of preliminary psychiatric examinations for indigent
defendants and established a statewide fee schedule in the process.' Maine's
state court administrator reports using a similar strategy; he watches for new
local court expenditure requirements and informs the appreciative courts of
the state's willingness to assume the costs.' Items may be small enough to be
handled by transferring funds or obtaining outside financing so that a state
administrative decision to assume costs can be made prior to going through
the full state appropriations process.
State court administrators can also use the stick rather than the carrot to
increase the receptivity of local trial courts to an increase in state financing
and state administrative control. Invernizzi reports that in Maryland, many
courts and local governments favor general state funding, with the exception
of courts in the wealthier counties of Montgomery and Prince Georges in
suburban Washington, D.C. However, Invernizzi used his administrative
authority to limit the expenditure of local funds on judicial travel to
professional meetings. The restrictions had no effect on the poorer counties,
but cut into the travel reimbursements of judges in the two wealthier counties.
I nvernizzi justifies this regulation on the basis of a concept of equality of court
services.' It also removed another incentive for Montgomery and Prince
Georges County judges to oppose full state funding of the courts: they were
already deprived of one benefit arising from the wealth of their county
governments.
While some state court administrators may use their discretion in an effort
to shift financing and administrative authority to the state level, the
percentage of local financing of courts may continue to grow in many states.
Because trial courts are so much more expensive than appellate courts, a small
percentage increase in the expenditures of locally funded trial courts will
constitute a much larger dollar amount than a large percentage increase in the
 121

expenditures of state-funded appellate courts and administrative offices.

Thus, states with limited and itemized state funding will tend to absorb more
of the increased costs of judicial services at the local level. The local
percentage of total court expenditures will then increase; see for example the
California figures in Table 5-1.c
In summary, the only efforts to redistribute responsibility for court
financing have sought to shift financial responsibility from local to state
government. As a result, there has been a slight increase in the breadth of
judicial activities funded at the state level. Local governments still bear the
largest burden of judicial expenditures, and there has been no significant
aggregate change in the distribution of expenditures between state and local
governments. If there is a movement toward state financing of courts, it is
moving much more gradually than the press releases and speeches on court
reform might convey.

Difficulties in Obtaining County

Funding

Full state assumption of court funding is usually advocated for one or more of
the following three reasons: (1) because local government revenue sources are
so limited state financing will generally mean more money for the courts and
improve the level of service in the total court system; (2) a state-financed
court system will be more independent, because local trial courts will not be
required to go before county boards to make and justify budget requests; and
(3) a state-financed court system can use the budget process as a tool for
improved management and planning, especially if general state funding is
implemented by unitary budgeting. 9
Even if the trend toward state financing is limited, as suggested in the
previous section, the advocacy of general state funding of court operations is
so widespread—see, for example, the 1971 Consensus Statement of the
National Conference on the Judiciary and the American Bar Association's
1974 Standards Relating to Court Organization—that it is important to
examine data relevant to each of the three arguments for state funding. Thus,
the remaining three sections of this chapter will evaluate the effects of state
financing. Does state funding increase the ability of courts to secure adequate
financial support? Does it make the judicial budgetary process more
independent? Does it facilitate effective management and planning for the
courts? In each case, the data gathered for the present study do not allow a
clear yes or no answer. However, by comparing responses from state-financed

C B y reference to the actual dollar figures reported in the Census Bureau surveys, one could
calculate absolute dollar and percentage changes in funding at each level and see whether state-
level expenditures are increasing at a faster or slower rate than local expenditures.
 122

courts with responses from a number of county-financed courts, it is possible

to suggest conditions under which state funding may achieve its three stated
purposes.
The surveys made for this study did not attempt to compare courts on a
dollar basis. Since the primary emphasis was the power of other branches of
government over judicial budget making and the contact between the
judiciary and other branches on budget matters, no measures were developed
to allow comparison of courts within a state—or from state to state—on the
basis of funds expended per unit of judicial activity.d The surveys did ask
questions about the degree of difficulty experienced by courts in obtaining
funding approval from state-level budget officers and legislators, and the
surveys were also distributed to county-funded courts to ask similar questions
about the degree of difficulty they have experienced. Responses provide a
basis for comparing different state court systems and for comparing state and
local funding of courts.
First, state court systems can be compared on the basis of their percentage
of state funding. Is there any relationship between the percentage of judicial
activity that a state finances and the degree of difficulty experienced by the
state court system in obtaining funds? Data reported on this relationship in
Chapter 3 suggest that a court system does not experience more difficulty
getting state legislative approval for financing when a higher percentage of
judicial activity is state funded. Second, state court systems can be compared
on the basis of the breadth of activities covered in the state judicial budget
(using the four categories of limited, itemized, mixed general, and general
state funding). Is there any relationship between the breadth of judicial
activity that a state finances and the degree of difficulty experienced by the
state court system in obtaining funds? Data reported in Chapter 3 do not show
any relationship between breadth and difficulty, although the nine court
systems with general state funding do tend to experience greater-than-average
difficulty. (See Table 3-2, which shows all state legislative difficulty scores.)
One would expect a state legislature to be tougher on judicial budget
requests when those requests become larger and more diverse. A state with a
low proportion of state-financed judicial activity is likely to have a state
judicial budget that concentrates on appellate courts and mandated items
(such as trial judge salaries). A state with a high proportion of state-financed
judicial activity is likely to have a much larger proportion of budget requests
that deal with supporting personnel and office expenses, which thus provides
more appetizing fodder for budget analysis in other branches of government.
This reasoning makes intuitive sense, but gains no support from data collected

d Such a comparison would require a definition of judicial activity measurable across

jurisdictions and an analysis of state and local court budgets to ensure that they include
expenditures on comparable activities.
 123

for the present study. Apparently, the political environment of a state—the

overall degree of frugality or generosity of its governor and legislature—may
be a more important factor underlying a court system's budget difficulty than
the size or breadth of the judicial budget. This finding—that differences in the
percentage of court system expenditures funded by the state do not account
for differences in the degree of difficulty in obtaining state funds—suggests
that if a state took over increasing responsibility for financing its court
system, the judiciary would not necessarily find it any more (or less) difficult
to obtain funds from the legislature than in the past. e
Court reformers in both Massachusetts and New York have recommend-
ed adoption of full state financing of those court systesm,'° even though the
two states already report difficulty scores of 3.0, the highest in the nation. The
willingness of court reformers in Massachusetts and New York to recommend
state financing when their legislatures are already resistant to judicial budget
requests indicates that improvements are expected over previously existing
systems of local financing. To examine local financing and draw comparisons
with state financing would have required that county-funded (and municipal-
ly-funded) courts respond to questionnaires similar to those sent to state-
funded courts. A complete survey of locally-funded courts would have been
prohibitive. f The obvious solution was to survey only a sample of the total
universe of locally-funded courts, but there was no way to draw a random or
representative sample of locally-funded courts.g Therefore, questionnaires
were sent out to subunits of the universe of county-funded courts. As a result, a
complete set of surveys is available from the general jurisdiction trial courts of
two states: first, from the 10 largest circuit courts in Michigan; second, from
all 14 superior courts in the state of Arizona." It is not possible to say
precisely how representative the two states' trial courts are. Both Michigan
and Arizona are states in which a high percentage of judicial activity is locally-
funded. The Michigan sample represents the most urban of the state's 45
circuit courts; the Arizona courts represent the total universe of superior
courts in the state—including urban courts in Phoenix and Tucson, and one-
judge courts in Greenlee, Navajo, and Y.avapai Counties. In both states, court
systems are considering the possibility of increased state financing of trial
courts.

e A test of this hypothesis would require longitudinal data—data from more than one point in
time—from states before and after the adoption of increased state financing. Since the present
study compares states at a single point in time, it can only suggest, not confirm, the hypothesis.
f The United States Bureau of the Census counted over 16,000 trial courts in a 1971 national
survey. See U. S. Department of Justice, Law Enforcement Assistance Administration,
National Survey of Court Organizations (Washington: U.S. Government Printing Office,
1973).
g The U.S. Census Bureau's 1971 National Survey of Court Organization did not ask any
questions on funding sources of trial courts; thus it would not be possible to draw stratified or
representative samples of state-funded and locally-funded trial courts.
 124

Each of these courts, through the chief judge, presiding judge, or court
administrator, was asked what degree of difficulty "the court experienced in
gaining approval from the county government for funding" of the same 10
activities listed in surveys sent to state-funded court systems. On the whole,
the Arizona courts are quite satisfied with their success, while Michigan
courts expressed criticism of their treatment by local funding authorities.
Only 3 Arizona courts volunteered examples of a county's refusal to approve
funds. In Gila County, the "Board of Supervisors has failed to approve wage
levels for qualified probation officers"; in Pima County, "[w]e have been
several years getting plans approved for a new courts building. Other
buildings were constructed first." Another Arizona county cited lack of
money available for a new juvenile detention home and court building.
Five of the 10 Michigan courts volunteered similar examples often, in
stronger terms:

County supplement increases for circuit judge [salaries] denied seven years
straight—claim not enough money. Raises for personnel to prevent losing them denied
for same reason. (Berrien County.)
The Supreme Court recommended a fourth judge. It was delayed two years by
county officials who convinced the legislature we had neither the space nor the money.
(Kalamazoo County.)
Commissioners were reluctant to increase judicial salaries to the maximum local
option permitted by [state] statute. Energetic lobbying by judges and local pride (we
should not let Wayne County [Detroit] pay their judges more than we do) led to
adoption of the increase. (Oakland County.)h

Some of these difficulties focus on expenditures characteristic of local trial

courts (probation officers), while others focus on issues found in counties and
not in states (salary supplements over state base). But the nature of the
complaints and often the response (for example, "energetic lobbying," on
salaries) would be familiar to state-funded courts as well. In fact, these
county-funded courts did not report any greater difficulty than state-funded
courts in securing budget approval. Thus, the difficulty scores (1.0 for no
difficulty; 2.0 for some difficulty; and 3.0 for considerable difficulty) in the 10
Michigan counties ranged from 1.4 (Genessee, Ingham, Saginaw, Washte-
naw) to 2.8 (Kalamazoo) and 3.0 (Wayne), with an average (mean) of 1.9. The
difficutly scores in the 13 responding Arizona courts are generally lower,
ranging from 1.0 to 1.8, with a mean of 1.4. i
In comparison, 30 state courts that responded to questions about the

h Jackson County reported "difficulty in getting sufficient probation officers," and Wayne
County cited an inherent powers suit that the court won but the county board "has ignored."

i All 13 Arizona superior courts would fall in the two lowest quartiles used in dividing states by
degree of legislative difficulty. (See discussion in Chapter 3.)
 125

difficulty of getting support from their state legislatures had scores that
ranged from 1.0 (South Carolina) to 3.0 (Massachusetts and New York), with
a mean of 1.9.-1 Twenty-eight state court systems rated the difficulty of
gaining approval for budget requests from executive branch budget officers
between 1.0 (5 states, not counting 2 states that said that the questions did not
apply) and 3.0 (Alaska), with a somewhat lower mean of 1.7. k Combining the
two state-level scores produces a score of 1.8, which is slightly below the score
recorded by the mean of the 10 urban courts in Michigan and higher than the
mean score of Arizona superior courts.
Therefore, it appears that the funding difficulties perceived by the courts
themselves are no greater for county-funded than for state-funded courts; in
fact, county-funded courts seem slightly more satisfied than state-funded
courts.'
In summary, the responses suggest that an increase in the percentage or
breadth of judicial activities funded by the states will not necessarily bring the
courts the money they want. Any move toward state funding must be justified
on other grounds. However, the responses are subject to interpretations that
preclude a firm conclusion that state assumption of court financing will not
generate needed or additional fiscal resources.
First, the data are not longitudinal—that is, the figures do not run over
time, but come from surveys at a single point in time. Thus, states with greater
state financing are compared with those states that are more heavily county-
and city-financed. What is not shown is what happens over time in specific
states that have increased the proportion of state financing of judicial activity.
It may be that in the 1970s, all courts—state- and locally-funded—are feeling
the pinch of funding authorities under pressure to keep down government
expenditures, so all courts face difficulties. But it may be that over a longer
period of years, those states that have changed their methods of financing will
be better off.

To make the state-local comparison more valid, this mean is based on legislative difficulty
scores reported by state courts only, as shown in the second column of Table 3-2. Difficulty
scores for county-level funding are based only on court responses, since no survey of county
boards was attempted in the present study.
k Again, to make the state-local comparison more valid, the mean is based on executive
difficulty scores reported by state courts only.
I Responses from locally-funded courts in 7 other states showed mean difficulty scores of 1.74
ranging from 1.0 to 2.9, as follows: Superior Court of Belknap County (Laconia, New
Hampshire, general jurisdiction), 1.0; District Court of Springfield, Massachusetts (limited
jurisdiction), 1.3; King County (Seattle) Superior Court, 1.6; Harris County (Houston)
District Court, 1.7; Los Angeles County Superior Court, 1.7; Beaver County (Pennsylvania)
Court of Common Pleas, 2.0; and New York City Criminal Court (city-funded), 2.9. Note that
the Michigan legislative difficulty score at the state level was 2.0, which is sightly higher than
the mean of the 10 county scores; the Arizona state legislative difficulty score was 1.7, also
higher than the mean of the 13 local scores.
 126

Second, the figures are based on surveys that tap the perceptions of court
officials rather than actual dollar changes. A court may be gaining resources
at a rapid rate, but its chief judge or court administrator may still feel that
funding is inadequate. Furthermore, the questions from which the difficulty
score was derived were phrased so that a court that never asks for anything
will never have any difficulty. A court may ask for more than it expects to get,
may have difficulty with funding authorities, but may wind up with more fiscal
resources in the process. What a court wants—defined by its judges and
administrators—may be different from what it needs—as defined by a set of
objective criteria for modern and effective courts.
As noted above, the difficulty score was devised because of the problems
that arise when comparing absolute dollar amounts from state to state. The
several states have many different criteria for inclusion and exclusion of items
in a court budget; thus, it is hard to make a valid comparison of court budgets
from state to state. In contrast, perceptions of difficulty can be surveyed and
compared as long as their limitations are clear: funds may be easy to obtain if
courts want little or ask for little; therefore those courts that have few wants or
make few requests may be the most satisfied with their treatment by fiscal
authorities. If the movement toward state financing is accompanied by
demands that new and different kinds and levels of activity be funded, courts
may be less successful in obtaining the funds they request, but court systems
may be receiving more financial resources than in the past.m
These interpretations of the survey findings prevent any conclusion that
increased state funding of judicial activity will make no difference in how
much public support is forthcoming. Even so, however, there are no findings
that re-enforce the hope of court reformers that state intervention will
improve the fiscal condition of local courts.

Fiscal Independence of County-

Funded Courts

What are the effects of increased state financing on the independence of the
judicial budgetary process? The focus of previous chapters has not been on
levels of funding but the process by which funds are obtained. Therefore it is
necessary to ask whether locally-funded courts participate in budgetary
processes that limit their independence to a greater degree than do the
budgetary processes of state-funded courts.

m It would be interesting to test whether trial courts with court administrators had higher
difficulty scores than trial courts without court administrators, since court administrators may
be more likely to request funding for new programs and/or increased support staff.
 127

Arizona

The Arizona and Michigan responses illustrate two different types of budget
processes in operation in the two states. In the Arizona counties, a low degree
of institutional differentiation in county government has given the Superior
Courts a high degree of independence. In 12 of the 14 counties, the court's
budget is submitted directly to the Board of Supervisors, the county funding
agency. In only 2 counties is the budget transmitted through an intermediary:
the Pima County (Tucson) court budget is submitted through the county
finance director; the Yavapai County judicial budget through the county
manager.
The county government holds budget hearings in 13 of the 14 Arizona
counties (although 3 of the 13 report hearings are only held "sometimes").
The hearings are held perhaps once a year and for a brief period, usually 15 to
30 minutes, but up to 3 hours in Maricopa County (Phoenix). Their
perfunctory nature in smaller counties may be due in part to the fact that they
are required by state law and might occur even when no controversy exists that
cannot be dealt with thrGugh informal channels. Even so, hearings are a mark
of independence in that they provide an opportunity for the courts to state and
press for their request through formal channels. This opportunity would be
less important, however, if the officials presenting the judicial budget were not
responsible solely to the court. Thus, if the court clerk, who in most county
jurisdictions is the elected or appointed clerk for the whole county govern-
ment, were the court's spokesman, the independent opportunity to testify at
hearings would be illusory. In fact, this fear is not reflected by the data
gathered here. In only 2 of 14 Arizona counties (Greenlee and Pima) does the
court clerk appear at budget hearings on behalf of the court, and in each case,
a judge appears with him. Judges appear at the hearing in all 14 counties, and
court administrative personnel appear with the judge in 3 counties.
The county-level judicial budget process in Arizona is not only direct
(without intervention of an executive officer between the court and the county
board), it is also personal. All 14 counties report discussions between the court
and county officials on financial matters, and 8 report continuous contact. Of
the remaining 6,4 report discussions initiated by county officials and 4 report
discussions initiated by interested judges. Judges participated in discussions in
all 14 counties. Informal personal contacts are the rule in Arizona, and most
courts indicate that personal acquaintance of judges and county officials is
one factor that facilitates their participation.
Arizona Superior Courts also have another tool available to assert their
independence: the inherent powers lawsuit. Two counties report recent use of
the judicial process to resolve conflicts arising out of county budget decisions:

[Our] only serious conflict was whether juvenile judge had authority to order
 128

county treasurer to pay attorneys to represent indigent juveniles or parents of juveniles.

Resolved by court action and Supreme Court decision that juvenile judges had
authority to issue orders on County Treasurer to pay the attorneys even though no
statute authorized the same. (Cochise County.)
Setting salaries for court reporters and adult probation officers has resulted in law
suits with the Board of Supervisors. [The conflict] was resolved by negotiating salaries.
(Maricopa County.)

It has been argued elsewhere that the inherent powers doctrine can be
invoked effectively only at the local rather than the state level." Inherent
powers lawsuits would not only prove less effective at the state level; such suits
are often frowned upon by state court administrators as indications of a
breakdown in the normal methods of developing budget requests and
resolving budget disputes." Note, however, that the occurrence of inherent
powers lawsuits in Arizona counties indicates that these suits can be used by
courts in a system characterized by low conflict and a high level of contact and
cooperation.
The major limits mentioned .by the judges themselves upon the fiscal
independence of county-funded courts in Arizona derive not from county-
level restrictions, but from state-level restrictions imposed upon counties.
Limits on the spending power of counties are applied by the state to all county-
funded agencies, including courts. As a result, Superior Court judges
reported and criticized state limits on court appropriations:

Legislature changed (for one year) the percentage by which budget could exceed
previous year [from] 10 percent to 15 percent. . . . [The] 1972-73 budget request was
accepted almost as submitted except for arbitrary reduction in salary account to bring
county within 15 percent limitation on increase in budget. (Pima County.)
[T]ake the 6 percent statutory county budget limitation off the court's portion of
the county budget. (Mohave County.)

State clearance requirements for transfer of funds were also noted:

Judges receive monthly reports of expenditures showing balance remaining in various

items of budget; sometimes in March or April contacts are had with clerk of Board of
Supervisors concerning a budgeted item which obviously is insufficient and a request
from State Tax Commission to exceed the budget is necessary. (Cochise County.)

In these cases, the fiscal independence or county-funded courts could be

increased only by state statutory and administrative changes that exempt
courts from statewide regulation of county spending powers.
In summary, the survey responses from Arizona Superior Courts suggest
that those county-funded courts have a number of the most important
characteristics of judicial fiscal independence—more than many state-funded
 129

courts have." Critics of county-level financing of state trial courts might

respond by asking whether local leadership and public opinion in a county,
especially a less populous county, may be so homogenous that the apparent
judicial independence is undermined by cooperative relations so close that
judge-participants are no longer aware of the extent to which independent
freedom of action is limited in practice. Judge-legislator contact may be
operating in the manner of the collegial model developed in Chapter 3—that
is, with courts achieving success by adjusting their wants and expectations to
coincide with the wants and expectations of county officials.° Critics might
also ask whether fiscal independence was used to achieve structural indepen-
dence and modernization. Critics could gather support from the finding that
the 14 courts submit their budget requests from one to a maximum of three
months before the beginning of a new fiscal year, which hardly indicates that
budgeting has evolved as a planning tool in the larger sense. These criticisms
point to the need for additional empirical research, including field interviews.
But they are also reminders of the extent to which advocates of judicial
modernization have assumed that fiscal independence is a product of their
efforts, when it may in fact exist in courts without professional adminis-
trators, information systems, or modern calendaring techniques. Judicial
fiscal independence rests in part on restricting the intervention of other
branches of government in the judicial budgetary process, and in part on the
development of internal judicial administrative capabilities. A judicial system
may have modern administration, but still be subject to a wide range of
executive and legislative restrictions.P

Michigan

The Arizona general trial courts may not be typical of county-funded courts in
other jurisdictions. The . Michigan survey of 10 urban trial courts shows
differences in the style and operation of judicial budgeting and in the resulting
patterns of fiscal dependence and independence. For example, in only one of

" Note however that the state judicial budget process in Arizona is high in independence, since
the executive branch has no power to revise judicial budget requests.
o Such adjustments may be made unconsciously and may reflect what political scientists would
call a common political culture binding local office holders together.
P Judicial fiscal independence is only one component of the administrative independence of the
judiciary, and both are separable from the concept of the judicial independence of a judge
exercising his judicial function. For example, Theodore L. Becker, Political Trials (In-
dianapolis: Bobbs-Merrill, 1971), p. 55, suggests that the independence of a supreme court may
be "measured by the number of times it decides in opposition to a chief executive in important
political matters."
 130

the 10 counties (Jackson County) is the court budget submitted directly to the
Board of County Commissioners. It is submitted indirectly through a county
manager or administrator in two counties, a Board of Auditors in two
counties, and a county controller in the other five. It is submitted at least three
and as many as six months before the beginning of a new fiscal year, which
indicates that more opportunity is provided for screening by county executive
officials. In fact, in Wayne County, a "preliminary" budget is submitted eight
months in advance (with the "final" budget submitted three months in
advance).
As in Arizona, hearings are held in all 10 responding counties, although
only every other year in Kalamazoo County. Between one and three hearings,
lasting from 20 minutes to 3 hours, are held every year in 9 of the 10 counties.
The county clerk does not appear on behalf of the court in any jurisdiction.
Judges appear at hearings in all but Genesee County, where the court
administrator appears, and court administrative personnel accompany the
judges in Oakland, Washtenaw, and Wayne Counties. (At the time of the
survey, only these four counties had court administrators.)
The importance of participation by county executive officials in Michigan
is reflected by the working relationships between the courts and county
governments. All 10 courts report discussions with county officials. In three
instances, discussions are with county commissioners (board members) only;
in another three instances, with executive officials; and in another four
instances, with both executive officials and board committees. Discussions
occur more frequently between submission of budget requests and hearings (7
counties), than before submission of formal requests (3 counties) or between
hearings and authorization (5 counties). q Discussions are more likely to be
initiated by county officials (8 counties) than by judges (2 counties) or court
personnel (3 counties). These findings indicate the active role that an executive
official, working in the pre-hearing stage of the budget process and more
readily available to initiate contacts than are part-time board members, can
take in the court budget process. Executive officials appear to be at least as
important in the process as board members.
The county-level budget process remains a highly personal one, though
somewhat less so than in Arizona. Judges participate in discussions in all 10
counties (although only "sometimes" in 3). But, one court administrator in
the Michigan survey writes that judicial participation

• . . is a relic from an earlier administrative era. It is the goal of the present court
administrator to take over all such contacts with county officials by limiting judges'

q Wayne County reports discussions "at least once a week • • • Every action is checked by the
[Board of] Auditors and approved by the Board of Commissioners"; Kalamazoo County
responds "almost anytime"; and three other counties report that discussions could be held at
other times when needed.
 131

participation to, at most, a ceremonial introduction at formal presentations.

In short, the growth of professional budget review in county government

may be matched by a greater emphasis on the role of the professional
administrator in the court. The process becomes more formal; it is character-
ized by a higher degree of institutional differentiation. However, it does not
appear that the process is becoming more independent in the sense of
noninterference by county officials, although it may become more indepen-
dent in the sense that budgetary expertise will develop within the court itself.
Michigan circuit courts did not report the sorts of state-level restrictions
on county expenditures that met objection from Arizona superior courts. But
they did report county restrictions similar to those imposed by state
legislatures and state executive budget agencies upon state-funded courts:

[The Board] ordered all county agencies and courts to reduce expenditures by 10
percent because of bad financial situation of the county. (Jackson County.)
Previously the court could more freely cause funds to be transferred from one item
to another. At present this can be done only on approval of the Board of
Commissioner. (Ingham County.)

Available court responses include the inherent powers lawsuit. The

salaries of probation officers were "finally 'ordered' by judges" in Kalamazoo
County. Another response is the exercise of independent authority on the
court's initiative. The Oakland County court administrator supplied two
examples:

[While the court is subject to allotments,] we do not pay any attention whatever to the
allotments as an actual control on reasonable expenditure.
[While the county Board of Auditors must give prior approval for certain transfers
of court funds,] toward the end of the year we freely request transfers from one budget
category to another and these requests are honored. We always let [the Board of
Auditors] know that such transfers are going to be requested before we send them
through. Occasionally, the Auditors are able to advise us of a particular way in which
to make the appropriate request.

Arizona and Michigan Compared

The tendency to take administrative initiatives may be more characteristic of

those courts with professional administrators. Such courts have a higher
degree of institutional differentiation than the courts in smaller counties,
where judges and county board members perform administrative functions as
adjuncts to the judicial and legislative activities. Larger urban courts such as
those surveyed in Michigan may therefore have budget processes that more
nearly resemble those at the state level, in which there is more executive
 132

participation, more staff review, longer time for consideration, and more
interaction involving administrative professionals. In these systems, there is
less direct access to appropriating authorities (one measure of fiscal indepen-
dence), but more opportunity to develop internal budgetary expertise and
expenditure control techniques (another measure of fiscal independence).
Analysis of county-funded courts in other states might show whether the more
independent aspects of both Arizona and Michigan trial court budgeting are
sometimes combined in practice, or tend to be incompatible.
The closer resemblance between state and county funding processes in the
larger Michigan courts, in contrast to the Arizona courts, may account for the
different reactions toward increased state financing of general trial courts in
the two states. Each court was asked whether it would "support increased
state funding or complete state funding of your court." Arizona Superior
Court respondents were eight to four in favor of increased state financing.
They were also asked under what circumstances they would support such
steps. Only two responses focused on the need for coordination and standards:
Gila County supported "partial state funding and a state agency, possibly the
Supreme Court, to set standards"; Pima County supported state funding
"under [the] Supreme Court." Five counties limited their support to
conditions in which the autonomy of individual courts was not restricted by
decisions made by court system officials at the state level. r
Michigan circuit judges and court administrators also note the need for
local control, but placed more emphasis on the constraints associated with
funding by local sources. Increased state financing was supported by 8 courts
and opposed by I. Seven of 8 supporters favored complete state financing and
emphasized the responsibilities of the state court system rather than the
autonomy of individual circuit courts:

If the administration of the state courts were centralized under the Supreme Court.
(Oakland County.)
Provided [there is more] uniformity, i.e., salaries and professional and supporting
personnel are added. (Kent County.)
The Circuit Court is a state court and the entire financing of it should be by the state
who then should receive all fines and costs. It is inefficient and degrading for the circuit
judges to have to go hat in hand to county commissioners who really have little, if any,
knowledge of court needs, much less functions. Also it can raise question of
impartiality of a judge who hears county cases where his salary in part comes from the
county. (Berrien County.)
Lam sick and tired of begging county officials. (Kalamazoo County.)

Only Genesee County opposed state financing; the court administrator

r For example, Maricopa County supported state financing "provided the ease of obtaining
supplies, payments, etc. was maintained and did not deteriorate"; Mohave County supported
state financing "if control of court personnel is left unfettered"; and Santa Cruz County would
lend its endorsement "so long as I have final say."
 133

felt that "the closer you are to your source of funds the better off you are." The
Presiding Judge in Ingham County (which includes Lansing, the state capitol),
also expressed similar reservations: s

It is difficult to answer this question. The criminal offenses this court tries are
violations of state statutes; this court spends considerable amounts of its time on state
administrative tribunal appeal matters. The state should contribute more, but I fear
that if the state participates more there will be more in the way of domination and red
tape [emphasis in original].

Thus, the Michigan respondents place more emphasis upon the rationality
of administrative structures and the proper distribution of fiscal responsibility
than upon maintaining a pre-existing network of personal relationships.
Arizona respondents place more emphasis upon local autonomy by favoring
the kind of state-level participation that does not interfere with benefits that a
local political situation gives a court. The difference in emphasis in the two
states corresponds to the different kind of fiscal independence operating in the
two states. The fiscal independence of Michigan's most urbanized circuit
courts depends upon professional judicial administration; the fiscal indepen-
dence of Arizona superior courts depends upon direct personal contact with
county officials. Thus, Michigan's most urbanized circuit courts support state
financing, partly because it would encourage professionalism in court
management, while Arizona superior courts support state financing if it does
not disrupt local ties.

Other Locally Funded Courts

-

Responses from locally-funded courts in other states indicate that the patterns
in Michigan and Arizona are applicable in counties throughout the country.
Large urban counties tend to have professionally administered courts that
have indirect contact with professionalized county budget offices. Small and
medium-sized counties have less institutional differentiation and more direct
contact between courts and county budget decision makers.
For example, in one urban area, King County (Seattle), Washington, the
Superior Court's budget is submitted indirectly to local funding authorities.
"Previously," reports the court administrator, the "budget request was
submitted to [the] County Auditor, reviewed by Commissioners' budget
directors with Judges Budget Committee and submitted to Commissioners.
Now [it is] submitted to Office of Budgets and Accounts [which has an]
informal hearing with court personnel, then to County Council for hearing,

s Note that the impartiality notion stated by Berrien County to support state financing would not
apply to the Ingham County Circuit Court, since the Ingham County court hears appeals from
state administrative proceedings.
 134

and to county executive once approved for implementing." The process begins
four and a half months before the new fiscal year; the two hearings are held
each year for about one hour, with judges (the three members of the court's
Budget Committee) and court administrative personnel appearing. The court
works primarily with the manager of the Office of Budgets and Accounts,
although judges on the Budget Committee sometimes participate in dis-
cussions with members of the County Council's Finance Committee. "Fund-
ing to date has been adequate," notes the court administrator, "but the
process of obtaining limited emergency appropriations is cumbersome."
Finally, the lawsuit technique has also been used. The county

[r]efused to grant increased salary for court reporters because they felt the amount
was too high. On two separate occasions the court reporters sued the county for the
increase recommended by the judges and won the case and were subsequently granted
the increase recommended, retroactively.

In summary, the King County Superior Court operates in a complex

budget process characterized by institutional differentiation, profes-
sionalization, and specialization. Judges participate not directly because of
personal contacts but because of membership on the appropriate court
committee. Executive participation is high.
The Criminal Court of the City of New York serves the five counties
(boroughs) of that city. Its budget process is perhaps the most complex of any
locally-funded urban court. Budget requests are submitted 6 to 7 months
ahead through the Judicial Conference and Appellate Divisions of the state
court system and are then transmitted to the Bureau of the Budget of the City
of New York, after which they are transmitted to the Board of Estimate and
City Council. Hearings are held at both executive and legislative funding
stages. Discussions are held between the court and the budget examiner
(executive). Contact is continuous, but the administrative judge of the
Criminal Court is the only judge who participates in discussions, which are
initiated by city officials or court personnel. Thus, the process is more
pro fessionalized, specialized, and institutionally differentiated than that in
Seattle, with even less participation by judges and less stress upon previously
established informal relationships.
The Los Angeles County Superior Court combines elements of a
professional and a personal system, but in an environment of high in-
stitutional differentiation. The budget is submitted to the County Board of
Supervisors 5 to 6 months before the beginning of the fiscal year through the
county's Chief Administrative Officer:

. • . [T]here is continual liaison between the Court and the CAO regarding financial
matters. There is formal contact at least once a week.

The system is executive centered, in that the county CAO is the main focus of
 135

working relationships. He also plays a screening role in the budget process,

but not without leaving the courts with some freedom:

The Los Angeles County Chief Administrative Officer may recommend changes in the
court's annual budget request. If the court is not in agreement with these recommenda-
tions, it may and does communicate same directly to the Board of Supervisors. The
continual liaison between the court's Executive Officer and the CAO has, with few
exceptions, limited any conflict in this area."

The court's ability to make its case is increased by the existence of public
budget hearings that are conducted by the Board of Supervisors and generally
last three or four days. Note, however, that only the court's Executive Officer
appears at the hearings. Judges sometimes participate in discussions with
county officials, but generally do not initiate such discussions. While the role
of the judges is circumscribed by administrative professionals on the court,
judicial participation remains important. Judges deal with both the Chief
Administrative Officer and the Board of Supervisors on "new programs [and]
program modifications of considerable magnitude which have implications
for other county agencies." Thus, while judges are not continuously involved
in the routines of the budget process, they are mobilized at the points where
major nonroutine budgetary decisions are made.
In less metropolitan jurisdictions, the judicial budget process has fewer
steps; the court deals directly with the county commissioners. In the District
Court of Springfield, Massachusetts, one of the state's limited jurisdiction
trial courts, the court clerk submits the judicial budget directly to the county
commissioners one month before the beginning of a new fiscal year and
defends the budget at a board hearing which may run several hours. In the
Beaver County, Pennsylvania, Court of Common Pleas,' 5 the budget is
submitted to the county commissioners four months in advance, and the court
administrator appears at day-long board hearings. Note that in both courts,
judges have a more limited role. They do not appear at budget hearings and
discuss budget matters with county officials only in limited circum-
stances—through the clerk or administrator. t In both counties, the judicial
budget process is independent of executive supervision; furthermore, the
existence of a court administrator in Beaver County provides the opportunity
for development of internal judicial branch expertise in areas of expenditure
control and budgetary planning. u

The lack ofjudicial participation in these two courts, in contrast to Arizona, may reflect in part
the basis for their inclusion in the present survey. The Springfield District Court was suggested
by the director of the statewide Office of Administration, District Courts of Massachusetts,
because of the long experience of the clerk there. In turn, the clerk's experience and seniority
may reduce the need for participation by judges. Beaver County was asked to respond
because it had an active court administrator.
U The Beaver County example suggests that professional court administration and direct access
may exist together where a local court has a higher degree of institutional differentiation —that
 136

One special case is the Harris County (Houston) District Courts, the
general jurisdiction trial courts for that metropolitan county. The budget is
submitted directly to the county board (called the Commissioners Court, but
not a judicial body), at the beginning of the fiscal year (not in advance). The
budget is prepared, presented, and defended not by a court administrator or
judge but by the County Auditor, an official with nonjudicial functions.
However, the County Auditor is appointed by the district judges and is
responsible to them. Thus, the budget process operates in the independent
fashion of a small county in some respects, but is directed by a county official
who is appointed by the judges and has nonjudicial responsibilities. It would
appear that this system has not stimulated the modernization of trial court
administration in Harris County, but it may provide a unique approach to
judicial fiscal independence, since the judges exert authority over one of the
key participants in the county's overall budget process."
In summary, state-funded courts do not necessarily possess a higher
degree of fiscal independence than do county-funded courts. The degree of
fiscal independence increases when there is direct access to appropriating
authorities, minimum intervention of executive officials, and development of
internal fiscal capabilities within courts or court systems. Internal fiscal
capabilities tend to be most highly developed in large urban trial courts or
larger state systems, yet those courts also tend to be subject to a higher level of
executive intervention than are courts in smaller states or smaller counties. To
assure judicial fiscal independence, the development of internal fiscal capabi-
lities must be matched by a reduction of executive branch intervention in the
judicial budget process. Only then can a move from county to state financing
of trial courts produce an increase in the fiscal independence of the judiciary.

Using the Budget to Manage and

Plan

The call for general state funding of state court systems is usually combined
with recommendations for a unified or unitary state judicial budget. Not only
should the state assume the costs of court operation, but the budget process

is, professional managerial skills—than other county agencies. Limiting the independence of
the Springfield, Massachusetts, District Court is the fact that the court clerk is appointed by the
governor and serves until retirement. Because the "tenure of clerks has extended over long
periods," the Springfield clerk was "unable to assume" that the judges were consulted on the
acceptability of prospective appointees. Thus, the court official who presents, supports, and
helps prepare and administer the budget is not a judicial appointee.
It would be interesting to consider whether executive or legislative branChes of a state
government might show more deference to judicial budget requests if the auditing function of
state government were placed in the judicial branch rather than under a legislative or an elected
auditor. However, such authority exerted by a judicial branch might weaken judicial
arguments on behal f of a strict interpretation of the separation of powers.
 137

itself should be centralized. Unitary budgeting "locates in one central

authority the ultimate responsibility for planning, channeling, and auditing
[sic] all judicial expenditures within a state."" It

offers not only a more orderly financial procedure for the courts but also the possibility
of improved court management. Its advantages may be summarized as follows:
I. Unitary budgeting promotes planning in judicial administration;
2. It permits a more equitable distribution ofjudicial services within a state;
3. It facilitates uniformity in job classification of judicial employees;
4. It provides a mechanism for administration of the system.''

There is agreement among court reformers and court administrators on the

importance of financial planning and the development of a budget process
that enhances the ability of courts and court systems to manage and plan their
own affairs. There is disagreement, however, on whether statewide unitary
budgeting is the most effective approach to achieve these goals.
To Colorado Court Administrator Harry 0. Lawson, unitary budgeting is
a necessary but not sufficient condition for effective judicial management and
planning. He stresses the need to establish multi-year "projections of court
operations and corresponding financial requirements," develop an equipment
replacement schedule, and set standards for staffing levels." Unitary budg-
eting makes it possible to incorporate these management tasks into the budget
process. But, to Lawson, it is only one element in the management apparatus
required by an effective state court system:

For example, if you don't have an overall personnel system in the judicial branch, so
that you have some control over staffing patterns, salaries, etc., I think state budgeting
becomes merely aggregating a bunch of local budgets, without being able to assert
priorities or try to raise poor courts to minimal standards or even establish minimum
standards."

( Many court administrators recognize that the stapler should not be the only
tool used to unify a judicial budget, but it may be the only one available. In
Colorado, unitary budgeting operates in the context of a unified personnel
system; in other states, this high level of unification may be difficult to
achieve.
The underlying goal of unitary budgeting is the equitable distribution of
fiscal resources throughout a state court system. Minimum standards are
developed to facilitate measurement and comparison of services from place to
place and to allow redistribution of resources when necessary to assure that
justice will be uniform throughout the state. "For all the judges who used to
have it easy with county commissioners," recalled Lawson, "an awful lot of
them didn't. I know one judge who used to be Speaker of the House, who
comes from a very poor district in Colorado. For years, he was wondering
when they were going to change the linoleum on his chamber floor.'"° State
funding allows such courts to be funded at a higher level. When state funding
 138

develops into a system of unitary budgeting with a unified personnel system,

standardization is also possible.
To Frank Zolin, the Executive Officer of the Los Angeles County
Superior Court, unitary budgeting—as part of a unified state court sys-
tem—may impede planning, especially in more populous states. He questions
whether unification would work in California:

When you consider the size, number, and complexity of the trial courts in California, it
is apparent that reorganization into a unified system will establish a new bureaucracy.
A unified organization of thousands of employees physically decentralized in hundreds
of work locations will create new, heretofore unknown problems of communication
and coordination. Control and supervision of such a large, complex organization will
be difficult.
The trial courts in Los Angeles County alone represent a judicial organization
larger than those found in 43 of the 50 states. To assume that unification of all trial
courts of California into a single system will necessarily increase efficiency is
fallacious!'

Zolin's argument does not rely only on California being the most populous
state and Los Angeles County being the most populous county in the nation.
The crux of his argument is that judicial planning must occur at the
operating—and hence local—level and that planning tasks should be central-
ized only to the extent necessary to encompass a minimum number of judges.

Unification of courts will necessarily have a limited impact upon court operations
because in actuality it merely represents a rearrangement of the supporting services
and supervision or control of trial court operations. It will not directly affect the
organization of a trial court that represents our basic means of production. No
proposal to unify the courts contemplates any change in the basic courtroom team (i.e.,
judge, court clerk, court reporter, and bailiff) that represents the vast majority of staff
and resources devoted to the disposition of court caseloads.
Some advocates of unification maintain that the reorganization of the courts'
superstructure to provide better control of trial court judges will necessarily improve
the utilization ofjudicial manpower. I believe this is true to a limited degree.
Utilization of judicial manpower can be improved through the unification and
control of small courts with a complement of one, two, or three judges. On the other
hand, I have never seen a unification proposal that demonstrated an improvement in
the utilization of manpower in any court with six or more judges located in a single
facility. It has been our experience that the utilization of manpower can be improved
through the establishment of multi-judge courts. However, once the level of judicial
manpower exceeds approximately six judges you have apparently reached a point of
diminishing returns."

Zolin still supports increased state funding of trial courts. But he argues
that the "greater resources available to state governments can be provided
courts without necessarily adopting a unified state court system or centralized
state budgeting." His recommendation is an earmarked subsidy that would
provide "necessary financial assistance to local jurisdictions without dis-
rupting the present budget process."
 139

As a general rule the legislature is responsible for establishing judgeships. It is possible

to develop a subsidy formula related to the number of judges or population, to be paid
into the county general fund and utilized for the support of courts. For example, if the
State of California provided a subsidy of $100,000 per judgeship, the Los Angeles
Superior Court would receive $16.1 million revenue. This would offset about 85
percent of our current budget of $19 million. The provision of such a subsidy would
provide local property tax relief and insure at least a minimal level of financial support
for the court. Local jurisdictions would have the responsibility and authority to
appropriate whatever additional funds are required to provide the level of judicial
services and support services required and demanded by the community.

Note the similarity between this proposal and the grant system in Pennsylva-
nia. The Pennsylvania subsidy is more modest, but it too is designed to relieve
financial pressure on counties "without affecting local control of the
courts.""
Because unitary budgeting emphasizes the equitable distribution of
resources among local courts,_Zolin fears that it would not "provide the
flexibility to develop new,piograms." His court has been able to innovate
because the Los Angeles'County Board of Supervisors has been willing "to
provide the resources necessary to develop new, experimental programs."
Under state financing, Zolin reaches "the inevitable conclusion that the level
of financial support for the Los Angeles Superior Court will necessarily be
reduced."

This reduction will be necessitated by a mandatory policy for a state budget officer to
provide an equal level of financing for all courts under his control. Unified state
budgeting will repeatedly place the state budget officer in the position of choosing
between the financing of new, experimental programs and providing resources to a
poorly financed court to bring it up to the generally accepted level of staffing. The
pressures on the budget officer to bring the poorly financed court up to standard will be
irresistable. How can he refuse to provide the level of clerical support, judges' libraries,
and facilities that are generally available throughout the state to a jurisdiction that has
heretofore been unable to provide them? I believe this will have an adverse effect on the
efforts of well-financed courts to improve the administration of justice by the
development of new programs."

Both Lawson in Colorado and Zolin in Los Angeles emphasize the need
for planning as an element of budgeting. "Budgeting can accurately be defined
as financing planning," writes Zolin. Lawson would appear to concur.
Lawson would also concur in Zolin's statement that "effective planning
requires the participation, control, and coordination of all factors or elements
essential to the plan." To facilitate participation and coordination, Lawson's
staff holds annual budget hearings throughout the state, so that the unitary
budget is prepared after considering the needs expressed by local court
officials. But Zolin also emphasizes the need to coordinate local court plans
with the needs of other justice agencies and argues that unitary budgeting
impedes interagency planning at the operating level:
 140

Centralized state budgeting ... of courts creates extreme communication problems in

coordinating planning activities with the other participants in the justice system,
particularly local sheriffs who administer jails, public defender offices, district
attorney offices, county probation offices, local bar associations, and other partici-
pants in the justice system.
An excellent example of coordinated planning is the design and construction of
multi-purpose court facilities. Our experience in Los Angeles indicates that multi-
purpose facilities housing all elements of the justice system (courts, district attorney,
public defender, probation, sheriff) are more efficient and effective. The development
of multi-purpose facilities would be extremely difficult if the state was responsible for
financing courts while financial responsibility for the other elements of the justice
system remained at the local level.
This need to coordinate the financial planning of justice agencies is present in
virtually all aspects of court operation."

Arguments for and against unitary budgeting for state court sy'stems are
similar to arguments for and against centralization in any organization.
Executive agencies and private corporations deal with similar issues of
relations between the central office and local branch offices. In any complex
organization, the central office seeks power so that the organization's product
may be standardized, so that the organization can provide a minimal level of
service in each of its branches, so that resources can be redistributed in time of
crisis, and so that resources can be pooled to prevent duplication and improve
the quality of technical advice. Most state court administrative offices have
the power to do one or more of these things. Colorado's state court
administrative office has authority in all four areas: the statewide judicial
personnel system contributes to standardization; unitary budgeting helps
define minimal levels of service and allow reallocation in time of crisis;'' and
management, budgeting, and planning expertise in the central office can be a
source of technical assistance to local courts. Even in states where less
authority is vested in state court administrative offices, economies of scale
often dictate that the state office should specialize in certain support
functions: judicial orientation and training programs, statistical reporting
systems, and the conduct of special studies. 26 These support functions are
similar to the research and development, information, and training activities
that are the responsibility of the central office in most complex organizations,
so that duplication at the branch level is avoided.
In any complex organization, there are also disadvantages when the

W Reallocation of resources in time of crisis is best illustrated in state court systems by the power
to transfer judges from place to place to handle special cases or high backlog on a temporary
basis. Most states and the federal courts vest such authority in a chief judge, chief justice, or
committee o f judges.
 141

central office exercises power over branch offices. Minimum services may not
be the most appropriate services for every locality. Standardized services may
not be adapted to distinctive local needs. Technical assistance may not be
made available in the most convenient or useful form. What, then, is the best
mix of central office authority and branch office automony? For courts, the
best mix is the one that produces independent, well-supported, and well-
managed local courts. Thus, local courts that lack management expertise and
adequate financial support could benefit from unitary budgeting, because they
would acquire planning skills and increased funding. Large urban courts that
have acquired management and planning skills, are well-supported by local
funding authorities, and do not compromise their independence in relations
with other justice agencies or with funding authorities would not benefit from
unitary budgeting. Therefore, it may be appropriate for court systems to
consider whether different degrees of local autonomy should be given to
different local courts within a state. In many states, cities vary in authority
depending upon their size (or "class"). Perhaps courts can be most effectively
organized and financed if different kinds of local courts are also treated
differently. Statewide budgeting and planning are often necessary, but they
may not be uniformly appropriate. If a budget should be used to manage and
plan for a court and a court system, authority must be distributed between
local courts and state court systems in a way that maximizes the ability to
plan. Even the largest urban court requires some assistance from the central
state administrative office. Even the smallest rural court requires some voice
in how its work is managed. In all court systems, responsibility must be shared
by central offices and local courts, with tasks divided so that central and local
authorities each perform those tasks for which they are best equipped.
While the use of state grants to local courts may best serve the
management and plannning functions of the judicial budget process, it may
have a negative effect on the independence of the state court system. Lawson
argues that a state legislature that provides formula grants to local courts
would still demand accountability for the expenditure of state funds.
Legislative demands for accountability could mean that local courts receiving
grants would be required to report directly to the legislature or the executive
branch rather than through the state court administrative office. These local
courts might then be subject to much stricter and more detailed executive and
legislative expenditure guidelines. If legislative control over formula grants
were to evolve in this direction, autonomy of local court management within
the state judicial branch would be accompanied by increasing ex-
ternal—nonjudicial—supervision at the state level.
State and local differences cannot be resolved by saying that both levels
want better planning and more effective courts, because the planning
assumptions and objectives of state and local officials may conflict. Lawson
plans in Colorado so that he can equitably distribute resources among
 142

competing courts. He is not directly involved in supervising the work flow

within these courts. Zolin plans in Los Angeles so that he can coordinate court
operations with those of other operating agencies in the justice system. The
local court administrator may disagree with the criteria for distributing funds
among courts or the organizational standards imposed by the central office.
The state court administrator may seek information necessary to compile
standardized statistics, while the local court administrator may prefer to
collect information more immediately useful for local planning. These
disagreements not only mirror the conflicts inevitable in complex organiza-
tions, but also reflect different goals and concerns: the state court adminis-
trator is responsible for the court system as a whole, with particular emphasis
on maintaining its autonomy and distinctiveness; the local court adminis-
trator is on the firing line on a day-to-day basis, with little time to consider
whole systems when snags in the flow of work constantly require attention.x
Because central offices and branch offices perform different functions—even
if those functions are complementary—disagreements are certain to arise.
In summary, both state participation and local participation are necessary
for court management and planning. The effective state court system will
develop planning abilities at both state and local levels, so that the needs of the
whole system (equitable distribution of resources) and the local courts
(coordination of elements in the work flow) can be met. Some degree of
centralized authority is necessary, but the division of state and local
responsibilities may vary from locality to locality. The greater the adminis-
trative capability of the local court, the more responsibility it should have to
manage its own affairs and plan its own future.

These lines of responsibility may reflect state/local differences, but may also reflect differences
in administrative style. Some state court administrators become involved in day-to-day court
problems; some trial court administrators (the classic example is Edward Gallas in the Los
Angeles Superior Court) are ardent in their defense of judicial administrative independence.
 The Separation of Powers and
Judicial Budget Processes

For the most part, discussion of court financing raises issues common to the
financing of all government services. The process of allocating public
resources to a state court system is complex, but perhaps no more so than
allocating public resources to a state educational system, a state welfare
system, or a state police system. Many different agencies and many different
levels of government are involved. Funds are scarce, and difficult decisions
among competing priorities must be made. But courts are different from most
other government agencies, because they are part of a separate branch of
government, insulated by constitutional provisions and traditions from the
limitations placed on executive agencies.
State budget processes focus upon the executive branch: most state
budgets are generated there, and most state appropriations go to support
executive branch activity. The existence of a constitutional doctrine of
separation of powers implies that the executive should treat agencies of the
legislative and judicial branches differently from agencies within its own
branch. In practice, legislative branches are treated this way. Since both
legislative and executive branches participate in the budget process, the
principle of comity dictates that executive budget makers defer to the
legislature's own assessment of its budget needs. However, the judiciary is the
only one of the three branches of government that has no role in the
governmental budget process. It cannot, like a legislature, appropriate public
money. It cannot, like a governor, veto an appropriation of public money. It
does have a specialized, unwritten, and limited inherent power to appropriate
funds for itself by judicial decree. Courts may go to court, and courts have
gone to court, to secure orders requiring the expenditure of public money
reasonably necessary for the effective operation of the judicial branch of
government.

Inherent Powers Lawsuits

The inherent powers lawsuit has become a well-known and controversial

approach to problems of court financing. Its advocates see it as a well-
established powerful tool for asserting judicial authority.' Its critics question
its constitutional wisdom and its operational impact. 2 By not placing a
discussion of inherent powers at the beginning of this study, the author has
deliberately attempted to place the doctrine in a secondary position in a

143
 144

discussion of the budgeting processes of state court systems. On the other

hand, in discussing the doctrine here, the author will attempt to spell out those
characteristics and functions of inherent powers lawsuits that are of interest to
students of court financing. Only within the context of such a discussion will
legal and philosophical arguments be developed and criticized.

Characteristics and Functions

The following generalizations may be made about inherent powers lawsuits as

a basis for obtaining court orders to mandate court financing:
1. They produce some of the strongest language ofjudges throughout the
country on the importance of maintaining judicial independence in a system of
separated powers. The precedents that have accumulated over several decades
almost always include references to the need for strong and independent
courts and to the constitutional underpinnings of such courts. As a result,
regardless of differences in burden-of-proof requirements or in definitions of
reasonableness, inherent powers opinions make powerful reading and provide
statements that could be valuable in a court's campaign for judicial fiscal
independence. Jim R. Carrigan, a Denver attorney who conducted a major
inherent powers lawsuit and served as Colorado state court administrator, has
collected and organized much of this material for use by the National College
of the State Judiciary. Carrigan himself attributes the growing interest in the
doctrine to its discussion by the National College over the past several years.'
2. They can be a tool for increasing the state contribution to court
financing. Inherent powers lawsuits are designed to limit the discretion of
other branches of government to define how much money the judicial branch
may have from the public purse. As states increasingly unify their court
structure and establish statewide standards for judicial service, local govern-
mental funding authorities may be required to pay the bills without having the
authority to limit expenditures. A similar situation arose in Colorado in the
1960s out of the controversy decided in Smith v. Miller. 4 A county board
refused to appropriate the funds necessary to pay court employees the salaries
established by the judges and argued that those salaries exceeded the salaries
of comparable county employees. The Colorado Supreme Court ruled that
the courts had the power (in this case, statutory and inherent) to establish
salary levels for supporting personnel, and counties had a ministerial duty to
pay the resulting bills. It was in the years immediately following the Smith
decision that Colorado moved to a system of state financing in which counties
no longer paid for court expenditures. The counties supported the move to
state financing once they had lost the discretion that had formerly accom-
panied their appropriating authority.' Similar pressure for increased state
financing might arise from suits that succeed in limiting discretion of county
officials.
 145

3. They can be a tool for increasing central administrative controls

within a state court system. The 1972 Massachusetts case of O'Coin's, Inc. v.
Treasurer of the County of Worcester' illustrates this possibility. In that
case, the Supreme Judicial Court upheld a district Judge's authority to
purchase necessary equipment without specific appropriation. At the same
time, the court noted that it would "promptly" adopt a rule prohibiting a
judge from exercising his inherent power "unless he first obtains written
approval from the chief justice of his court or another designated judicial
officer."' The new rule also requires that notice of any approval be submitted
to the executive secretary of the Supreme Judicial Court, whose staff may
then enter into negotiations with county authorities. a Thus, by asserting the
inherent power of judges "to bind government contractually," the Supreme
Judicial Court was able to expand the superintending activities of central
judicial branch administrators to make certain that the newly defined power
"is exercised only upon proper occasions." 8
4. They are directed primarily at county-level budget authorities. While
precedents can be cited that apply to the inherent powers doctrine at a state
level,b most suits are against county boards to force the expenditure of county
funds. Carroll v. Tate, the well-publicized 1971 case arising out of the
Philadelphia Court of Common Pleas, dealt with city appropriations. 9
GeofryHazdnhisocteavrgudhmosfteprd
cases involved disputes that "pitted the judicial system not against the
executive or legislative branch of the state government, but rather against
subdivisions such as counties or municipalities. Thus, the ultimate struggle
has been between state and local governments, not between the judicial and
legislative or executive branches."°
5. They are generally directed at marginal increases in personnel or
equipment. Judges for the Third Circuit v. County of Wayne (Michigan)
sought additional probation officers and other professional supporting
personnel. The Michigan Supreme Court held in the judges' favor, but only
awarded one court administrator." The O'Coin's case in Massachusetts was
fought over payment for an $80 tape recorder and $6 worth of tapes.' 2 Other

a See John F. Burke, "The Inherent Powers of the Courts," 57 Judicature 247 (January 1974), at
250: "Since the decision of O'Coin's, a number of requests for approval of a judge's exercise of
his inherent powers have been reported to the chief justice of the Supreme Judicial Court or its
executive secretary. In each instance, a member of the executive secretary's staff was
dispatched to consult with the judge seeking approval and the other appropriate officials,
generally county treasurers and commissioners, in order to ascertain all aspects of the situation
prior to invoking the inherent powers doctrine. In every instance to date, without any further
need for judicial action, judicial personnel and county authorities have been able to enter into
reasonable compromises amicably disposing of each case." For another discussion of the
process, see John M. Connors, "Inherent Powers of the Courts—Management Tool or
Rhetorical Weapon?"1Justice System Journal 63 (Winter 1974).

b See especially In re Janitor of Supreme Court, 35 Wis. 410 (1874), which is considered one of
the bases for Wisconsin's application of sum sufficient budgeting to state judicial appropria-
tions.
 146

cases have involved furniture, air conditioning, and similar physical require-
ments." Carroll v. Tate was a rare example of a case in which a dollar amount
was awarded for a wide range of expenditures.
6. They have not been used by courts to limit the authority of state
executive budget officials. Many state budget statutes are premised on the
notion that the judicial branch is simply another state agency or department
and, therefore, subject to the same review and revisory authority within the
executive branch as state executive agencies and departments. Some states
exempt the legislative branch from these requirements but not the courts.' 4 It
would seem plausible for a state court to refuse to accept executive fiscal
authority not also applied to the legislative branch by invoking the principle of
separation of powers for support. However, Carrigan's documentation of
cases suggests no precedents in this category, which supports Hazard's
argument that suits against local budget authorities are more viable than suits
against state budget authorities.
7. They have rarely been used to secure equipment not previously found
to be required by a court. Thus, inherent powers lawsuits have not been a
vehicle for ordering purchase of computer equipment or other technology to
accompany sophisticated judicial information systems. While earlier equip-
ment cases could certainly be cited as strong precedent in such an effort, it
may be more difficult for a reform-oriented court to convince another tribunal
that new technology, nonexistent in most courts until very recently, would
now be a requirement for effective judicial management, and therefore
obtainable by court order. c
8. They have been used in emergency or last-resort situations on an ad
hoc basis, not as a method for continuous fiscal underwriting. The inherent
powers lawsuit has not been a budgetary technique; no jurisdiction files suit
annually and submits its fiscal year requests in its brief. The regular budget
process used by other public agencies is still used by the courts, with the
lawsuit a technique reserved for those incremental budget changes that fiscal
authorities reject but the courts can argue are essential."
9. The remedies commonly sought in inherent powers cases reflect the
nonroutine nature of such suits. Thus, a writ of mandamus has usually been
asked for; declaratory judgments have been used, but they are less common.
The declaratory judgment proceeding directed against a public agency is
premised on the good will of such agencies. It is assumed that once a court
declares the law, compliance will follow. However, framing suits in a

C Interview sources suggest that a New Jersey trial court used the inherent powers doctrine in
1974 to justify expenditures for a computerized management information system. Note also
the approval of a new trial court administrator position in the Wayne County (Michigan) case.
These two examples suggest a new and potentially important trend in inherent powers
litigation.
 147

mandamus format implies a threat of noncompliance with a declaration not

accompanied by a coercive writ.
10. Compliance with court orders in inherent powers cases is problematic.
The Wayne County case "was finally resolved on rehearing on September 30,
1971," but "the county has ignored it." 6 The Philadelphia Court of Common
Pleas never received any of the $1,365,555 awarded by the state Supreme
Court in Carroll v. Tate." A plaintiff court may not seek enforcement of a
money judgement, since the appellate court decision may come so late in the
fiscal year of the original suit that the award could not be expended before the
beginning of a new fiscal year. On the other hand, the funding authority may
contest the legitimacy of the court action and refuse to comply, forcing
additional court action (or calling the court's bluff).

Effectiveness and Impact

Beyond the limited question of compliance is the broader question of the

impact of inherent powers lawsuits. Their impact has not been subject to
systematic study. There is insufficient evidence on the effects that these suits
have in the short run and the long run on the behavior of appropriating
authorities. Do they come away from such a confrontation fearing for some
future suit, so they are more ready to hear out the courts? Or do they wait for
an opportunity to get even in some way that would be less easily amenable to
rebuff by litigation? In turn, what are the effects of such suits on the courts
themselves? Do they become more aggressive in seeking public funds, or do
they retreat to a more cautious approach following an unusual public
confrontation? Without some idea of how an inherent powers lawsuit usually
affects the participants, its value remains unknown.
While it is not yet possible to draw conclusions about the impact of
inherent powers lawsuits, some hypotheses may be put forward:
1. Working relations between the judiciary and other branches of
government on administrative and financial matters may break down if a
court goes outside the normal political process and files suit. Lawsuits seeking
appropriations by court order may be incompatible with a system of
legislative-judicial and executive-judicial relationships that stress inter-
action, cooperation, and partnership.d One reason for the absence of inherent
powers lawsuits in the federal court system may be the desire of federal
judge-administrators to maintain good relations with legislative and execu-

d Note, however, that the Arizona findings in Chapter 5 suggest just the opposite conclusion.
Interaction between local trial courts and county boards in Arizona has apparently been
maintained in spite of occasional use of inherent powers lawsuits.
 148

tive agencies. Federal courts have invoked inherent powers to bolster judicial
prerogatives to issue enforcement orders, but no suit on financing has
apparently ever been filed.' 8 In 1963, Chief Judge Sylvester Ryan of the
Southern District of New York enjoined the General Services Administration
from executing planned alterations of the federal courthouse in Foley
Square. But judicial administrative response was immediate and conciliatory.
The Judicial Council of the Second Circuit set up a three-person committee to
handle negotiations between the chief judge and the GSA; after a compromise
was reached, the injunction was lifted, and no judgment was entered or
opinion written by any court on the controversy. e
2. Inherent powers lawsuits may weaken the structure of public support
for the judiciary. When judges act as litigants, the public may conclude that
such a case will not receive the impartial hearing that litigation requires.
Conversely, a show of strength by judges may be greeted favorably. These
competing hypotheses could have been tested following a court-county
confrontation in Wayne County (Michigan) in 1973. After the Board of
County Commissioners had voted against Circuit Court budget requests, the
chief judge of the Circuit Court brought each commissioner before the bench,
asked how each one voted on the budget, and found in contempt those
commissioners who opposed the court. In contrast to this strategy of open
conflict, a litigation strategy could be developed to minimize the appearance
of judicial involvement. For example, no judge appeared as a litigant in the
O'Coin's case in Massachusetts, because the court that had purchased the
contested tape recorder had billed the county, and the private retailer
therefore brought suit directly against the county treasurer.
3. Inherent powers lawsuits may be more successful at the local rather
than the state level—that is, courts may win a higher proportion of suits
against local authorities, and the suits will have a more persuasive effect on
local budget officials. This may be a question of power. It may be more
difficult for a court to issue a writ of mandamus against a co-partner—a state
legislature or state executive official. In that sense, a federal inherent powers
suit would be virtually impossible, since it would require a district court to
order payment of funds not appropriated by the United States Congress. f
What may also be involved is the increased flexibility of appropriating
authorities at state and national levels. County budget agencies are more

e In fact, the injunction was not issued in any case filed or pending. However, accounts of the
incident suggest that Chief Judge Ryan obtained what he wanted. See The New York Times,
April 17, 1963, pp. I, 28; and June 2, 1963, p.40.

f In recent years, many federal courts have challenged congressional actions and prerogatives.
Nevertheless, such efforts may have limited impact on the matters at issue. See Powell v.
McCormack, 395 U.S. 486 (1969), in which the Supreme Court held that Congress had
"unlawfully excluded" New York Congressman Adam Clayton Powell from the 90th
Congress. The decision did not come until the 91St Congress, to which Powell was not elected.
 149

likely to use strict line-item budgets than are state and federal authorities. At
the same time, local courts are faced with more of the uncontrolled costs
necessary for doing judicial business—for example, jury and witness fees,
appointed counsel, and courtroom security. Meeting uncontrolled costs in the
framework of line-item budgets is likely to require use of the inherent powers
doctrine. At the state level, legislatures most commonly appropriate for
controlled costs such as judges' salaries, and legislatures can cut court system
budgets without touching items obtainable by mandamus. For example, a
state legislature could cut the budget of the state court administrator's office,
or a state planning agency could deny a court's application for a grant to
support a pilot program.
4. Inherent powers lawsuits may strengthen the bargaining position of
the judicial branch in negotiations with officials of other branches. One state
court administrator reported that when he was hired, the chief justice's efforts
to clear the necessary funds were resisted by executive budget officials. The
chief told them to act or else he would issue a writ of mandamus on the state
treasury. The position was funded without delay.' 9 In this respect, the inherent
powers lawsuit may be the functional equivalent of labor's right to strike. In
labor disputes, the strike is a rarely used weapon that is available if there is a
breakdown in collective bargaining. A strike can be threatened in order to
enhance the union position at the bargaining table. In the same way, the
existence of a doctrine of inherent powers may be important in maintaining
the independence of the courts, by enhancing the judiciary's potential leverage
in fiscal negotiations with executive and legislative authorities. If inherent
powers lawsuits were to become more common and were resorted to more
frequently, their value might be reduced: the prestige of the judiciary might
suffer, and the very prevalence of such suits might be viewed as a warning
signal of not only the fiscal ill-health of the courts but also a breakdown in the
normal pattern of relationships across branches of government that is
required in a healthy body politic.
In summary, while there are a variety of important practical limitations to
the use of inherent powers lawsuits for promoting the fiscal independence of
the judiciary, the inherent powers doctrine may have real value within these
limits to define and re-enforce concepts of judicial independence that are
central to an effective budget process for state court systems.

Components of the Separation of

Powers Principle

It follows from this argument that while an understanding of the doctrine of

inherent powers is not central to an understanding of the budget processes of
state court systems, the doctrine can have a role in strengthening the
judiciary's position. The effectiveness of such a role will depend to some
 150

degree upon the clarity and forcefulness of the doctrine itself. Since inherent
powers are rooted in the principle of separation of powers, an abstract
discussion of that principle and its components may help clarify the meaning
of the inherent powers doctrine and specify how inherent powers lawsuits can
be used, not only by local trial courts, but by state court systems as well.
While the doctrine of inherent powers is usually derived from the concept
of the separation of powers, that concept has been subject to only superficial
treatment by scholars, when it has been treated at all. Federalism, the other
major concept embodied in the United States Constitution, has been subject
to philosophical discussion, empirical research, comparative analysis, and
political debate. Separation of powers is embodied in state constitutions as
well as the federal constitution, but it has received much less scholarly
attention. This lack of attention makes it difficult for those who face practical
problems that have a separation of powers component to draw upon an
underlying theoretical basis on which to take action and justify action.g
Two recent works provide for the first time a thorough philosophical
examination of the roots and growth of the theory of separation of powers.
The first is a monograph by an American political scientist, W. B. Gwyn, The
Meaning of the Separation of Powers, published in 1965. The second is a book
by a British scholar, M. J. C. Vile, Constitutionalism and the Separation of
Powers, published in 1967. Gwyn's purpose, as his subtitle indicates, is "An
Analysis of the Doctrine from Its Origin to the Adoption of the United States
Constitution." Vile's purpose is not only to do this, but to also examine the
growth and development of the doctrine in Britain, France, and the United
States in the nineteenth and twentieth centuries, as part of a broader
consideration of a modern theory of constitutionalism. The present discussion
reflects their concern, although not always their conclusions. It is guided by
Gwyn's concluding statement:

• • . separation of powers theorists—and even the same theorist at different

times—have not agreed about the institutional arrangements which satisfy the
requirements of the doctrine, a fact to be recognized in judging whether, even if valid in
some general sense, the separation of powers doctrine is specific enough to be a useful
constitutional standard. Indeed, if there is something of value in the doctrine, it is the
constructive task of contemporary constitutionalists to determine what it is and to
describe as specifically as possible the conditions which will attain it. 2°

Analytically, the doctrine of separation of powers includes two concepts:

the concept of functional differentiation and the concept of checks and

g This section was first drafted before widespread public debate on the Watergate affair raised
separation of powers questions. Systematic scholarly analysis of the separation of powers has
not yet emerged from the aftermath of Watergate. Current writing still necessarily focuses on
the unique aspects of that affair rather than the characteristic patterns of relations arising from
operation of the separation of powers.
 151

balances. Functional differentiation is the notion that the consititution has

separated the three branches because they engage in three distinct activi-
ties—one legislates (makes law), one executes (applies and enforces law), and
one adjudicates (decides how the law should be or should have been applied in
specific cases). Checks and balances is the notion that while a different branch
performs each of these three functions, the others should, by the performance
of their functions, prevent arbitrary or unlimited exercise of any one power.
If either of these basic concepts were applied directly to judicial financing,
judicial independence would be sharply reduced, and there would be no
reasonable basis for an inherent powers lawsuit. Functional differentiation
implies that the judiciary should only adjudicate, and therefore should have no
administrative personnel preparing the court budget or supervising budget
execution. The making and monitoring of a budget are administrative tasks
that are not adjudicatory in nature. Furthermore, the notion of checks and
balances implies that legislative and executive fiscal activities are legitimate
checks on the judicial activities of the third branch, since the whole purpose of
checks and balances is for one branch to perform its own functions in a
manner that limits the other and thereby places the system in equilibrium.
Thus, the concepts underlying the separation of powers would seem to
preclude a claim that fiscal independence for the judiciary is required by the
separation of powers. Fiscal independence for the judiciary seems to conflict
directly with the concepts of functional differentiation and checks and
balances. And yet, if one refers to the major exposition and justification of the
separation of powers in American political thought, The Federalist Papers,
particularly Numbers 47 through 51, one finds James Madison speaking
eloquently in support of such independence:

It is equally evident that the members of each department should be as little dependent
as possible on those of the others for the emoluments annexed to their offices. Were the
executive magistrate, or the judges, not independent of the legislature in this
particular, their independence in every other would be merely nominal."
• . . as the legislative deliartment alone has access to the pockets of the people, and
has in some constitutions full discretion, and in all a prevailing influence, over the
pecuniary rewards of those who fill the other departments, dependence is thus created
in the latter, which gives still greater facility to encroachments of the former."

Is the contrast between the logic of the separation of powers concept and the
recommendations of Madison simply a sign, in Gwyn's words, that the
separation of powers doctrine is not "specific enough to be a useful
constitutional standard"? Or must the doctrine be approached from another
perspective?
Historically, the doctrine of separation of powers emerged in the
eighteenth century from a combination of two earlier concerns central to
political debate in England. One focused on the conflict between legislative
and executive, at that time between parliament and the monarch. The notion
 152

of a balanced constitution, in which neither executive nor legislative could

dominate and thus tyrannize the population, evolved at that time and found
expression in the United States Constitution.h The other focused on the
conflict between executive and judicial, between those who administered the
law on behalf of the reigning monarch and those who administered the law
impartially between the rulers and the people. The concept of the rule of law,
the notion that an individual is entitled to a day in court to question the
application of law to his case, had already developed at this time, and was
expressed in the principle of judicial independence embodied in the Act of
Settlement of 1701. (The Act fixed judicial salaries and tenure of office, and
placed both outside the discretion of the monarch.) Merger of the concept of
the rule of law with the concept of a balanced consititution meant the
development of a tripartite theory. The two political branches would share the
enormous powers of government, while the judicial branch would maintain its
traditional function of guardian of an even-handed law, thereby requiring
that both political branches justify their action in light of judicial inter-
pretations of statutory, constitutional, and common law.
What is the relationship between the two pairs of concepts: on the one
hand, functional differentiation and checks and balances; on the other hand,
the balanced constitution and the rule of law? In theory, the concepts
complement one another: each one must operate so that the other can persist.
In reality, they may conflict. The aggressive use of checks may ensure a
balanced constitution, or destroy it. Balancing may occur in such a way as to
undermine the rule of law. The rule of law might itself become an instrument
for limiting checks or redefining functions. To resolve such real or potential
conflict requires that some order be given to the various concepts. All of them
are related to the end of achieving a government that will not become a
tyranny over those who have consented to be governed by it. The balanced
constitution and the rule of law may be interpreted as historical operational
definitions of government free from tyranny. Functional differentiation and
checks and balances were means by which the operational goals of a balanced
constitution and rule of law could be achieved.
Within this framework, checks and balances and functional differ-
entiation can be evaluated on the basis of how effectively they contribute to the
operational goals. If a certain functional differentiation undermines the
balance between branches or the rule of law, its value is reduced, and it ought
to be changed. If certain checks by one branch undermine another, or
undermine the rule of law, their value is reduced and they should be changed.
Institutional functions, therefore, may and ought to change. If an
executive branch increasingly takes on traditional legislative func-

h In contrast to the English political situation, the framers of the United States Constitution were
concerned with limiting the powers of the popularly elected legislature and not a hereditary
monarch.
 153

tions—proposing new policies, defining the legislative agenda, issuing general

standards to govern administration of public programs—a legislative branch
may maintain its power by taking on traditional executive functions, such as
the evaluation of particular programs, determination of personnel to be
appointed to public positions, and the monitoring of public expenditures.
Thus, the daily activities of governmental branches change to maintain the
valued balance. Where such activities are less transferable, as in the fields of
foreign and military policy at the national level, changes are more difficult and
only occur in the midst of vigorous public debate.
Therefore what is needed to relate separation of powers theory to practical
issues arising between branches of government are concepts that can be used
to evaluate whether particular checks and balances or functional differ-
entiation contribute to a balanced constitution and the rule of law. Two
concepts will be discussed here: the notion of improper checks and the notion
of incidental powers.
Improper checks are those attempts by one branch of government to limit
the activities of another in ways that are not sufficiently timely or direct to
allow the other branch the opportunity to carry out its constitutional
functions. The notion that certain checks are sufficiently untimely or indirect
to be improper also implies that more timely and direct—and equally
effective—checks are available for use by one branch against another.
In a number of different situations, the federal courts have established
doctrines that limit judicial intervention in otheer branches of the national
government. The courts will not enjoin a congressional investigation when
allegations are set forth that constitutional rights will be violated at such an
investigation. In such a case, the Second Circuit held that the courts were
precluded from anticipatory interference in the legislative process, since any
unconstitutional action could be neutralized by later proceedings." The
principle of exhaustion in administrative law is another example of the courts
applying the criterion of timeliness; in such cases, it has been held to be
improper for the courts to intervene in executive branch activity until the
parties have exhausted their available administrative remedies.
And the courts will not allow constitutional principles essential to the
separation of powers to be undermined indirectly. Thus, the principle of
congressional immunity has been extended beyond members of Congress, to
include staff members acting in their official capacities. For example, a
linotype operator in the Government Printing Office cannot be prevented
from or punished for printing a libel uttered by a member of Congress on the
floor of either house. i
The same logic used in defining improper checks across branches has been
applied by federal courts to federal-state relations by the abstention

i But see Gravel v. United States, 408 U.S. 606 (1972), which limits immunity of congressional
staff. More representative of the traditional breadth of immunity is U.S. v. Johnson, 383 U.S.
169(1966): and cf. J. Brennan's dissent in Gravel. 408 U.S. 60-6 at 648-665.
 154

doctrine. That doctrine, reasserted by the Burger court, prevents a federal

district court from intervening in state criminal proceedings until after trial
and appeal of constitutional issues through the state court system.' A check
on the states is still available through appeal to the Supreme Court of the
United States, but not until state judicial remedies are exhausted.
The logic that underlies these legal principles should also be applied to
executive and legislative branches in their relations with court systems on
administrative matters. On budget matters in particular, the executive and
legislative branches should not apply indirect checks on the court system. In
1965, for example, the United States Congress was subject to widespread
criticism for excluding Supreme Court justices from across-the-board salary
increases provided for federal judges. Since direct means were available to
overrule or limit specific controversial court decisions, the use of salary
legislation as a collateral attack on judges of a particular court may constitute
the sort of improper check not authorized by the doctrine of separation of
powers. Similar examples might be cited in a number of states, in which each
of the three branches attempted to use improper checks against one of the
other branches. The supreme court in one state prevented the legislature from
retaining an attorney in a suit in which the state attorney general opposed the
legislature's position. The legislature in another state delayed appropriations
for a new courthouse after the court invalidated a reapportionment plan. In
these instances, indirect checks were used improperly to limit the discretion of
other branches or influence the exercise of that discretion.
Executive and legislative branches should also avoid the use of untimely
checks in the judicial budget process. Contrast the constitutional legitimacy of
a legislative post-audit of judicial expenditures with the questionable practice
of requiring executive pre-audit of judicial expenditures. Contrast the use of
legislative hearings in the appropriations process with executive format
requirements imposed upon judicial budgets at the stage of initial prepara-
tion. When other branches of government can review and approve judicial
budget requests during the legislative appropriations and post-audit periods,
it may be improper for those branches to interfere with judicial budget
activity at the preparation and execution stages.
The notion of a balanced constitution generates further limitations on the
discretion of executive and legislative branches over judicial budgets. Any
express or implied use of the budgetary process as a check on the substantive
activities of courts can be considered an improper check, because of the
relatively weaker position of the judicial branch in budgetary matters. The
judiciary is the only branch of state government that does not directly
participate in the budgetary process. The judiciary can only request funds; it
cannot vote on them, approve them, or veto them. The executive branch in
many states has the major role in the budgetary process at the same time that
its agencies are a major source of litigation. Many critics of courts argue that
courts have too much power; even if that argument is granted, power over the
 155

appropriation of public funds is not exercised by the courts. It would not be

correct to cite the doctrine of separation of powers in such a way as to prevent
all legislative or executive action to overrule or limit the application of court
decisions. But if the doctrine of separation of powers contains as one of its two
basic elements the rule of law, preservation of the rule of law requires that
court decisions not be biased by the sources of court funding. Such a principle
was used to invalidate payment of judges by fines collected from defendants. 25
Suchaprinleso txrcifeuvolgsatidcren
a way which appears to create a bias in favor of those two branches by judges
beholden to them.
This line of argument is close to the notion of incidental powers cited by
Michael Conant in his introduction to Arthur T. Vanderbilt's lectures on The
Doctrine of the Separation of Powers and Its Present-Day Significance. To
Vanderbilt, judicial independence is the "operative check on possible arbi-
trary action by legislatures or executive officers ... , [for both the legislature
and executive, in their efforts to govern, have a vested and therefore biased
interest in unlimited statutory enforcement." 26 Conant refers to "incidental
powers necessary to carry on allocated constitutional power" in the following
terms:

It is often necessary for officials in one department, for the full and proper discharge of
their duties, to perform acts which usually belong to one of the other two departments.
Both the judiciary and the executive must exercise some minimal legislative power in
making rules for the orderly conduct of their departments. It is said that courts have an
inherent rule-making power, limited by the procedure statutes enacted by the
legislature. The rules and regulations of an executive department for the discharge of
its duties are usually made pursuant to a general statute delegating such functions.
Both courts and legislatures must also engage in some executive or administrative
activities in discharging their duties. 27

Thus the notion of incidental powers holds that while some activities of the
three branches may overlap functional differences, they are still valid
exercises of power, because they are necessary and limited adjuncts to the
basic functions of the respective branches. Implicit in this concept are certain
other assumptions: (1) for one branch to attempt to check another by
interfering with an exercise of incidental powers may constitute an improper
check—that is, it may be an untimely or indirect way of checking another
branch of government; and (2) for a less powerful branch to be able to check a
more powerful branch and thus maintain a balanced constitution, it cannot be
dependent for incidental needs upon the discretion of that branch.
In summary, the components of the separation of powers concept must be
analyzed in terms of how effectively they serve the underlying principles upon
which the separation of powers is based: the principle of a balanced
constitution and the principle of the rule of law. Such an analysis requires a
more critical approach to both functional differentiation and checks and
balances, an approach which develops criteria for the appropriate exercise of
 156

checks and the appropriate differentiation between the functions of the three
branches.

The Separation of Powers as a

Limitation on Executive and
Legislative Action

How does this abstract discussion of the separation of powers apply to the use
of inherent powers lawsuits and to proposals to increase the autonomy of
judicial budget processes? In simplest terms, the separation of powers
exempts the judiciary from executive branch discretion over its budget
processes and places limitations on legislative discretion over judicial budget
processes. It links the use of inherent powers lawsuits to improper exercises of
legislative and executive power over court finances. But the principle of
separation of powers does not exempt the judiciary from the legislative
appropriation process.
Executive branch authority over judicial budget requests derives from
extending gubernatorial authority to administer state departments to depart-
ments outside the executive branch. Executive budgets were created—at
federal, state, and municipal levels—to give chief executives a tool to exert
power over executive departments and agencies. Those departments and
agencies had been subject to executive control as a matter of law but not as a
matter of fact. The goal was to make central authority real. Advocates of
central budgeting, however, did not consider whether their theories applied to
court systems. So little state money was used to finance state judiciaries that
the question of whether principles of executive budgeting applied to court
systems was apparently ignored. Consider the following statement of the
goals of an executive budget, as expressed in a 1950 report of the Council of
State Governments:

One of the most significant institutional devices of modern government is the budget.
It offers an opportunity for the consideration of all programs and policies in one
consistent frame where they may be compared, their interrelationships examined, and
rational choices made. In addition to its role as a policy coordinator, the budget is also
emerging as an important device for administrative control. The process of program
analysis and forecast of needs offers an opportunity for the budget-making authority
to learn the inner details of organization and procedure of all administrative agencies
and to establish performance standards. Within the past thirty years the budget has
emerged as the principal control device of the American governor."

Certainly, if a central state budget is designed to give executive officials the

opportunity "to learn the inner details of organization and procedure of all
administrative agencies and to establish performance standards," such budget
authority should not be applied to state court systems.
 157

Chapter 2 suggested that executive supervision of judicial budgetary

processes was administratively unwise, because it would tend to retard the
development of internal judicial management skills. This supervision could
also constitute a violation of the separation of powers. To the extent that
executive officials attempt to establish administrative procedures or set
administrative guidelines for state court systems, they are infringing on the
incidental powers of the judiciary. To the extent that executive supervision is
designed to achieve substantive executive policy goals, the judiciary may also
be subject to an improper check.
State budgeting literature suggests that executive budget officials are an
important part of gubernatorial policy apparatus in the states. Schick reports
an interesting finding on this subject:

In the PPB [planning-programming-budgeting] interviews for this study, state budget

officers were asked: "Which of these functions do you consider the most important for
your office: (a) control over expenditures; (b) assisting agencies to do their work
efficiently; (c) serving as a policy staff for the governor?" Twenty-four replies were
received, most of which came from PPB-active states. None of the budget directors
placed his operation in the control category; seven regard their offices as management
assistance operations; and seventeen prefer to be regarded as policy staffs. The
responses to this question clearly show that budgeters view themselves as policymakers
and want to eschew a financial control role. 29

In most cases, the "policies" noted here would concern the organization and
management of courts rather than the decisions of courts) However, if a
governor's policy were to "get tough" on criminals, would it be proper for an
executive budget office to pursue this policy by rewarding prosecution-
oriented courts and punishing defense-oriented courts during review and
revision of judicial budget requests? Since authority to appoint new judges or
recommend changes in criminal penalties could provide more direct checks on
judicial behavior, using executive budget authority in this fashion would be
improper.
To the extent that gubernatorial budget authority derives from con-
stitutional authority to administer state agencies, the judiciary is exempt,
because one branch of government should not be subject to nonstatutory,
nonconstitutional, or administrative guidelines of another branch. To the
extent that gubernatorial budget authority derives from constitutional
authority to recommend legislation, the judicial budget may still be legally

In practice, state executive budget officials rarely relate to state court systems in the strongman
fashion implied by the role definitions proposed by Schick and the Council of State
Governments. Executive budget officials often require that courts use formats and deadlines
required of executive branch agencies. Many questionnaire responses by state budget officials
indicate a desire to see performance measures and other output data as the basis for more
"objective" justification of court budget requests, but executive branch officials have not
usually tried to impose such analytic techniques on the judiciary.
 158

subject to executive review and recommendation. But because this review is

based on the legislative authority of the governor and not his administrative
authority, the judiciary should not be required to cooperate with executive
screening officials or follow procedures applicable to executive agencies. The
exercise of the governor's legislative authority is still limited by the concepts
of improper check and incidental powers and the more basic principles of a
balanced constitution and rule of law.
The authority of legislative appropriations bodies is also subject to similar
limitations. The budget should not be used to pressure any court or judge to
decide a case in a manner favored by an appropriations body. Budget
limitations should not be used either as a form of harassment or as an indirect
technique for stimulating policy change (organizational or procedural) in the
judicial branch. On the other hand, the legislature should retain its authority
to pass an overall state budget, which includes appropriations for all three
branches of government. This legislative authority extends to the judicial
budget and allows legislators to establish priorities among competitors for
scarce public dollars. As long as judicial appropriations do not fall below
some minimum level reasonably necessary for the performance of judicial
functions, the courts must join the competition for fiscal resources.
While this argument places more restrictions on executive budget author-
ity than on legislative budget authority, inherent powers lawsuits have
traditionally arisen when local legislatures (county boards) decline to make
needed appropriations for the courts. However, use of the inherent powers
doctrine by local courts is often the result of not only the frugality of county
boards, but also the efforts of county boards to exercise administrative
authority over the courts by precise specification of judicial expenditures. If
county-funded courts were given lump-sum budgets or were given more
authority to transfer funds across budget categories, they could reallocate
fiscal resources to meet immediate necessary expenses. Judicial authority to
make internal allocations could avert conflicts that give rise to inherent
powers lawsuits, assure that funding authorities do not infringe on the
incidental powers of courts, and also place more fiscal responsibility in the
courts themselves. For example, should not the Worcester, Massachusetts,
District Court be able to authorize one of its judges to purchase an $80 tape
recorder, as did the judge in the 0' Coin's case? This authority would not only
avoid a lawsuit, but would place the responsibility for finding the necessary
funds on the court itself. Only if the overall needs of the court were not
adequately funded could an inherent powers lawsuit be brought."
The application of concepts of incidental powers and improper checks to
county-funded courts and county boards suggests that procedural changes
could avert some inherent powers lawsuits. At the same time, the concepts of
incidental powers and improper checks should extend the application of the
inherent powers doctrine. That doctrine has been used after appropriations
for a court have fallen below a minimum level or have failed to include
 159

necessary items. But the principles underlying the concept of inherent power
have been used less frequently to enforce . procedures upon executive and
legislative budget officials)k The thrust of the argument in this section is that
the separation of powers restricts how judicial budget requests and judicial
expenditures may be dealt with by other branches of government. Basic
constitutional principles require that advocates of a strong executive budget
rethink its application to the judicial branch and that legislators exercise their
appropriations authority without undue restrictions upon the internal author-
ity of judicial administrative bodies.
In some cases, existing state practices and new recommendations for
reform give state courts greater fiscal independence from legislative authority
than could be derived from this interpretation of the separation of powers. For
example, the West Virginia Constitution prohibits any legislative reduction of
judicial budget requests. And Wisconsin's use of sum sufficient budgeting
gives its courts authority to spend public funds in excess of legislative
appropriations. Both states have provided the judicial branch with a high
degree of independence from legislative fiscal authority: the questions of what
legislative checks are improper and what judicial branch powers are
incidental are set aside. However, in either West Virginia or Wisconsin, the
legislature could be given more authority over judicial appropriations without
disturbing the constitutional balance required by the separation of powers. At
the same time, however, evidence about actual practice in the two states
suggests that judicial autonomy is not so great as to tip the constitutional
balance in favor of the judicial branch. I
The late Chief Justice Thomas M. Kavanagh of Michigan proposed a
third approach to exempting the judicial branch from the legislative appro-
priations process. In his 1973 State of the Judiciary message, Kavanagh asked
that the state take over financing of the courts by earmarking "not less than 3
percent of total state revenue for the judicial system.'"' The proposal has a
Michigan precedent: the 1963 state constitution provided that the Civil
Service Commission be funded by "a sum not less than one percent of the
aggregate payroll of the classified service for the preceding fiscal year." 32 The
chief justice sought similar independence from legislative appropriating
authorities for the state court system. However, the proposal would not only
extend judicial fiscal independence further than the separation of powers

k The doctrine has been applied to personnel practices. See the decision of the Maine Supreme
Judicial Court in District Court for Dist. IX v. Williams, 268 A.2d 812 (1970), which held that
court employees fired by a court do not have a right of appeal to the state civil service
commission in the executive branch.
1 As noted in discussion of West Virginia and Wisconsin practice in Chapters 2 and 3 above, both
states fund most judicial expenditures at the local level and rely to some degree on the state
executive budget office for preparation of state judicial budget requests. If either state moved
toward general state funding of the court system, judicial independence from legislative review
might be curtailed.
 160

commands, but also has characteristics that might limit its effectiveness and
make its adoption unwise. It could retard the development of output-oriented
budgeting in the court system. Most court budgets focus on expenditures for
inputs: personnel, supplies, equipment, and so forth, rather than on outputs:
what the system and its component parts produce for the dollars spent.
Contemporary budget theory emphasizes the need to connect input and
output; however, if a state judicial budget total were derived from a formula
unrelated to system output, efforts to design an output-oriented budget might
be undercut. It is also conceivable that the state legislature might add new
programs onto the judicial budget, so that total judicial branch expenditures
would regularly exceed the guaranteed three percent, and the legislature
would regain discretion to choose among judicial branch budget requests.
Thus the Michigan proposal, an interesting new approach to increasing the
fiscal independence of state courts, must be evaluated partly in terms of its
possible side effects.m
A fourth and final way of avoiding the legislative appropriations process is
through some form of user fees. At the national level, the U.S. Federal
Reserve Board receives no congressional appropriation, but is funded entirely
by member banks. Within the past few years, the U.S. General Services
Administration, which constructs and maintains federal buildings, moved
from reliance on congressional appropriations to a system of charging rent to
other federal agencies. Courts have traditionally relied on fees to meet some
part of their expenses, as have state universities and colleges and state
recreational facilities. It is interesting to note that while a federal executive
agency such as the GSA has moved to funding by user fees, no similar
proposal has been made by or for any court or court system—even though
some aspects of civil litigation serve a limited group of users, and criminal
litigation could in theory be funded by transfer payments derived from a
formula based upon prosecutorial activity. Courts have moved away from
reliance on fee systems, and there is apparently no interest in moving back in
that direction. While reliance on user fees would escape the legislative
appropriations process, it would open up an array of other questions. For
example, would assessment of total court costs to users place such a heavy
burden on private litigants as to close off the courts to users at a time when
constitutional interpretation of due process and equal protection is evolving
new concepts of "access to the courts"?"

m Within a few months after Chief Justice Kavanagh's address in 1973, the formula approach
was dropped, and state Supreme Court Justices began meeting with an ad hoc legislative
committee to develop plans for state assumption of court financing. Resulting legislation would
increase the breadth of the state judicial budget without altering the traditional role of the
legislature in the appropriations process. The original three percent proposal thus succeeded in
getting the attention of the legislature, and generating pressure for increased state funding.
(Information on the Michigan proposals was provided by Doris M. Jarrell, Director of
Information Services for the Supreme Court of Michigan.)
 161

While these four approaches to court financing would exempt the judicial
branch as a whole or in part from the legislative appropriations process, such
an exemption is not required by the principle of separation of powers.
However, that principle does place restrictions on legislative discretion. It
suggests that lump-sum budgets or expanded authority for internal transfer of
funds within the judicial branch are better practices than legislative enforce-
ment of line items. It suggests that legislative discretion does not extend to
making budget cuts that prevent courts from operating as courts. And it is the
basis for obtaining a court order, under the doctrine of inherent powers,
thereby making legislative discretion over judicial budgets subject to con-
stitutionally derived and judicially defined limits.
The new Alabama Judicial Article, approved in a constitutional referen-
dum election on December 18, 1973, is perhaps the first effort to place explicit
constitutional limits on legislative discretion over judicial budget requests
without exempting the court system from the legislative appropriations
process. Article VI, section 10, includes the following language:

Adequate and reasonable financing for the entire unified judicial system shall be
provided. Adequate and reasonable appropriations shall be made by the legislature for
the entire unified judicial system, exclusive of probate courts and municipal courts.

These provisions not only authorize general state funding of the Alabama '
court system, but also include an explicit requirement that appropriations be
"adequate and reasonable." This language creates a cause of action against
the state legislature if appropriations are arguably inadequate or unreason-
able. It places one aspect of the inherent powers doctrine in the state
constitution, which thus makes that doctrine available at the state level. The
practical consequences of the new language await implementation of the new
article. The provisions may be the basis of litigation, or may not. They may
induce a higher level of legislative support for judicial budget requests, or may
create more conflict over who should interpret the meaning of "adequate and
reasonable." Whatever the results, the Alabama provisions are a healthy sign
that reform of the internal organization of a court system can be accompanied
by efforts to increase the fiscal independence of the judiciary. n

n Note however that Alabama judicial budget requests may still be revised by the executive
branch before submission to the legislature. Article VI, section 10, focuses on the level of court
system funding and not the procedures by which the court system obtains executive and
legislative approval for its budget requests.
 Conclusions and
Recommendations

The study of state court budgetary processes involves both empirical and
normative issues. It requires a study of what is—how courts and court
systems interact with executive and legislative officials and how executive and
legislative officials exercise authority over judicial budgets—and what ought
to be—how constitutional principles and principles of effective organiza-
tional development apply to the court budget process. This chapter highlights
and summarizes the author's empirical conclusions (findings) and normative
conclusions (recommendations). Recommendations were not derived in-
ductively from the data, but were founded upon an analysis of constitutional
and management principles. The findings suggest how these principles might
be applied, and what effect the application of constitutional and management
principles might have upon operations and outcomes of the judicial budget
processs.

External Authority

Courts and court systems require and will continue to require funding from
public sources outside of their control. As a result, all court budgets are
subject to the discretionary authority of public officials outside the judicial
branch. In 48 of the 50 states, state legislatures possess legal authority to set
limits upon how much money courts may spend and on what activities that
money may be spent. In 47 of the 50 states, constitutions or statutes place no
lower limit on the appropriation that the state legislature may enact. In 30 out
of 50 states, budget statutes treat the judicial branch in the same way as they
treat agencies of the executive branch. (See Table 2-1.) As a result,
governors or executive branch budget officers in 31 states have full authority
to review judicial budget requests and independently revise any of those
requests before submitting them to the legislature as part of the executive
budget. (See Table 2-2.)a In only 6 states does the judicial branch have
statutory authority to submit all or part of its budget requests directly to the
state legislature and thus bypass executive review. Governors have an item
veto over appropriation bills in 42 states, and in no case is the judicial branch
exempt from that item veto authority. County boards, which currently
appropriate more public funds for court operations than do state legislatures,'

a The two statements about legislative power also apply in the District of Columbia, Guam, and
the Virgin Islands. The two statements about executive power do not apply in the District of
Columbia or Guam.

163
 164

also have broad discretion over the level of judicial funding. In many states,
county authorities are required by the doctrine of inherent powers to provide
funds reasonably necessary for support of court operations. However, above
that minimum level counties may be as frugal as they wish. b In urban
counties, judicial budget requests are usually transmitted indirectly to county
boards through county executive officials.
In a majority of states, executive officials maintain discretion over the
expenditure of funds already appropriated for the courts. In 60 percent of the
states, responsibility for budgetary and related accounting controls rests with
the executive branch, and in 60 percent of the states executive officials
determine the quarterly allotments of judicial appropriations. In half of the
states, executive officials audit vouchers of state-funded courts before
reimbursement of judicial expenses is allowed. In three-fourths of the states
that allow appropriations to be transferred across budget categories, prior
approval of executive officials is required. At the county level, similar
authority rests in nonjudicial officials.
This wide range of external fiscal authority over courts and court systems
should be reduced. The judicial branch should be completely independent of
executive supervision in the preparation, review, approval, and implementa-
tion of court budgets. The growth of a central, comprehensive state executive
budget has occurred in most states without adequate consideration of the
limits that the constitutional principle of separation of powers places upon
executive authority over judicial administration. Executive authority to alter
judicial budget requests, veto items in the judicial appropriation, and
administer controls on judicial expenditure exceeds the authority that ought
to exist under a balanced constitution in which the judiciary maintains certain
defined powers free from the potential exercise of an improper check by the
executive. Such executive powers should be abolished. Analogous executive
powers at the county level ought also to be limited.
The exercise of executive supervision over judicial fiscal matters not only
violates the principle of separation of powers, but also leads to institutional
dependency—the willingness or necessity to allow other organizations to
manage the internal affairs of an institution. Institutional dependency, bred
by the benign supervision of executive budget experts, retards the ability and
confidence that court systems need to operate as mature and responsible self-
managed institutions. To break this dependent relationship may require a
declaration of fiscal independence (and fiscal responsibility) by state court
systems.
This declaration will require that a state court system give priority to
establishing effective independent control over the development and imple-

b The survey of county-funded courts was not complete or representative; however, none of the
responding county-funded courts (see Chapter 5) reported any limits on board authority such
as the West Virginia Constitution places on that state's legislature.
 165

mentation of its budget. The judicial branch must be willing to take on the
responsibilities for planning, management, and control implied by indepen-
dent budgetary authority.c At the same time, the judicial branch must press
for enactment of constitutional and statutory provisions that exempt its
budget requests from executive authority. As an interim measure, the judicial
branch should negotiate the necessary agreement with executive officials to
allow the court budget to be transmitted directly to the legislature without
executive revision. If these negotiations fail, the judicial branch should be
prepared to exercise unilaterally its constitutional responsibility for devel-
oping a court system budget free from executive supervision. The state court
budget should be submitted directly to the legislature. At the same time, an
information copy should be sent to the executive branch budget office.
Executive budget officials should be notified in advance of the total figure that
the judiciary requests, so that a balanced overall proposed state budget can be
presented to the legislature. However, the judicial branch has no obligation to
justify the internal allocation of funds requested for the courts to executive
budget officials.d
What will be the effects of reducing executive authority over judicial
budget requests? The absence of statutory authority for executive revision of
judicial budget requests reduces the extent of executive participation in the
judicial budget process, thereby making it easier to obtain executive branch
endorsement of judicial requests. (See Table 2-3.) At the same time, absence
of executive revision authority is not associated with an increase (or a
decrease) in the difficulty of obtaining legislative approval of judicial budget
requests. (See Table 3-8.)
While executive officials should be excluded from exercising authority
over the development, approval, and implementation of judicial budgets,
state-funded courts should not be exempt from the appropriating authority of
state legislatures. Under the separation of powers, state legislatures should
retain the authority to determine the level of public funds allocated to the
judicial branch. Similarly, county boards should retain authority to determine
the level of county funds allocated to county-funded courts. The judiciary is
entitled to use techniques of justification and persuasion to influence

C These recommendations apply to state court systems regardless of the size of their budgets, or
the breadth of judicial activities funded at the state rather than the local level. The process of
preparing and implementing a judicial budget may be quite different as its size and breadth
increases, but the argument for reducing dependence on executive branch supervision and
developing internal competence is directed at all court systems.
d None of these recommendations impute any antagonistic intent to state executive budget
officials. State budget officers were most responsive to surveys for the present study, and many
showed a thoughtful understanding of the administration of justice and a high level of
professional budget expertise. The point is that the effect of their participation is to maintain
judicial administration in a subservient position and to extend the administrative authority of
the governor to a state department not constitutionally responsible to his or her administrative
authority.
 166

legislative decision making, but is ultimately subject to the overall budget

levels established by the legislature.
At the same time, legislative authority is not unlimited. It must be
exercised within the constitutional limits of the separation of powers. In
practice, this means that state legislatures and county boards should use more
inclusive or general budget categories, rather than less inclusive or more
specific budget categories. At one extreme, a lump-sum budget could specify a
single amount appropriated for the entire court system. At the other extreme,
a line-item budget could specify precise details of expenditures, down to the
salaries of named personnel. Between these two extremes are budgets in which
the funding authority specifies large categories, by lump-sum programs (for
example, the Supreme Court, the intermediate court of appeals, the general
trial court, probation services) or by line-item functions (for example,
personal services, supplies and equipment, contractual services). While it may
be appropriate for courts to submit detailed budgets so that funding bodies
can understand the judiciary's budget plans, requiring detailed line item
appropiations may constitute an undue and improper legislative interference
in the internal management of the judicial branch. Appropriation by lump
sums allows legislative authorities to establish upper limits for judicial
spending without substituting the supervision of the legislative branch for that
of the executive branch. e
The doctrine of inherent powers means that the judiciary retains authority
to determine the lower limits of the appropriation that it requires to fulfill its
constitutional powers and responsibilities. No funding authority can reduce
the judicial budget so that it fails to provide funds reasonably necessary for
effective court operation. As state funding of courts becomes more wide-
spread and strict line-item controls are de-emphasized, this standard will
decrease in importance and generate less litigation. However, the concept of a
lower limit on legislative appropriations remains the major nonprocedural
limitation on external authority over the judicial budget process.
Other limitations on the practices of external authorities can be derived
from the preceding principles. Standards of efficiency used to measure the
performance of executive agencies should not be applied uncritically to the
measurement of judicial branch performance. Limits imposed by state
statute upon the discretion of county boards should not be used to place upper
limits on judicial appropriations. (See section on Arizona in Chapter 5.)
Adoption of executive branch fiscal procedures and management practices
should be at the discretion of the court system, and acquiesence in such
practices and procedures should not prevent the court system from adopting
other more effective practices at a future time. Under no circumstances
should a court be required, by voucher pre-audit or other procedure, to obtain

e The conflict over specificity of court budgets could be mooted if the authority to transfer funds
across budget categories were vested in the judicial branch.
 167

permission of an executive official prior to the expenditure of appropriated

funds. No grant program, emergency fund, or other arrangement for
subsidizing judicial branch operations should be subject to executive branch
discretion or the discretion of executive officials acting jointly with officials of
the legislative branch. To the extent that Law Enforcement Assistance
Administration grant programs violate this principle, it is essential to define
court involvement in a way that does not permit the need for "criminal justice
system" coordination to be used to undermine the independence of participat-
ing courts.

Internal Responsibility

Placing limitations on external authority over court budgeting is premised on

the importance of the independence of courts and court systems to the
existence of the rule of law and a balanced constitution. These concepts place
their emphasis on preventing tyranny rather than on efficient government. In
the past century, the concept of administrative responsibility—with its
emphasis on coordination and systemwide planning—has grown in impor-
tance, as governments become more necessary than evil. The use of central
budgeting is one way of developing administrative responsibility; however, its
application to the judicial branch may be undermining the checking and
balancing activities expected of courts. The way out of this dilemma is to
develop internal responsibility within judicial institutions—so that they can
operate both effectively and independently. Developing internal responsibility
requires a rethinking of a primary trend of administrative theory, which
stresses the need for more coordination, more rationalization of organiza-
tional structure, and clearer lines leading to a more clearly defined systemwide
authority. Such rethinking has already begun and is emphasizing the need for
decentralization and autonomy to rebuild responsiveness and leadership at
many points in a larger system. It is time for court systems to assert their
administrative independence and establish means for internalizing responsi-
bility within their own institutions.
Most state court systems have taken some steps in this direction. Over 40
states have state court administrators with systemwide responsibility. In most
instances, these officials play some part in the preparation or submission of
the state judicial budget. Court administrators with similar budget functions
operate in many county-funded courts in more populous jurisdictions.
However, the judicial bugetary process is developed in only a rudimentary
fashion in many states. (See Table 1-3.) It is common in a number of states
for portions of the judicial budget to be prepared by budget officers in the
executive branch or for different courts within the state system to submit their
budgets separately for executive or legislative review. In only one-fourth of
the states is the budget prepared by some central judicial branch office or
 168

officer. Even then budgets rarely are used as a management tool to facilitate
measurement and evaluation of past performance. The use of the judicial
budget for organizational planning through multi-year projections and
systemwide participation is presently almost nonexistent. Very few states
designate a member of the central judicial administrative staff as a budget
officer, and only two state court systems report having an auditor to conduct
internal post-audits.
A number of recommendations follow from a court system's commitment
to internal fiscal responsibility. The court system should prepare its own
budget for all state-funded courts and other judicial branch activities. As the
budget grows in size and complexity, professional staff with specialized
planning and budgeting skills should be included in the court system's
management team. Capability for internal post-audits (both fiscal and
mangerial) should be developed. Budgeting must become part of a continuous
administrative process in which past performance is evaluated and future
needs are projected. In that way, the budgeting process can become a central
part of the effort to develop a workable and effective judicial process. The
development of annual budget requests and multi-year budget projections
becomes an opportunity for components of a court system to examine their
work patterns and provide information to the central judicial administrative
office about their resource needs including needs for personnel, equipment,
and space. The budget exercise also provides central court system adminis-
trators with an opportunity to develop and test management and performance
measures suited to the distinctive needs of the judicial process.
What will be the effects of the judiciary's assumption of internal fiscal
responsibility? Findings in Chapter 3 suggest that greater internal coordina-
tion of the state judicial budget process (through central preparation or
central review of budget requests) is associated with less difficulty in obtaining
funds from state legislatures. (See Table 3-11.) Therefore, the development
of central coordination—and fiscal planning—by court systems should not
only increase their ability to administer themselves, but may also improve
their chances for success in the legislature. f
The degree of internal budget coordination is also related to the breadth of
activities covered in the state judicial budget. (See Table 1-4.) The greater
the variety of judicial activities that are state funded, the greater the degree of
internal coordination. This finding suggests that one way to increase the
effectiveness of judicial branch management and planning is to move toward
general (or full) state funding of a state court system. How general state
funding would be made workable and effective will be discussed in a section
below.

I But note that Table 3-11 shows only a correlation. It cannot be assumed that an increase in
coordination will cause a decrease in difficulty. However, if the two are related, a change in one
may be associated with a change in the other.
 169

The need to develop internal budgetary skills is applicable at the local

level, especially for those county-funded courts whose scale allows the
employment of administrative professionals. Changes in public budgeting
practices constitute one of the most important developments in state and local
government today. 2 By achieving fiscal independence, courts and court
systems should not escape from these new practices, but should analyze
selectively their application to judicial institutions. The result could be an
independent and responsible court system, equipped with budgetary skills that
contribute to necessary planning and evaluation.

External Relations

The assumption of fiscal responsibility by the judicial branch must not be

equated with isolation. Internal responsibility will require the maintenance of
contacts outside the judicial branch. An effective pattern of legisla-
tive-judicial relations must be developed and maintained. Where executive
budget officials still retain an active role in budget review, executive-judicial
relations must also be given attention. As the court system develops
professional budgetary competence, professional judicial administrators will
require contact with other jurisdictions and with other professional adminis-
trators in order to keep abreast of new managerial techniques and to assess
their transferability.
The findings of this study indicate that most state court systems have
established contacts with funding authorities in executive and legislative
branches. Discussions with the legislative branch were reported by state courts
in over 90 percent of the states and with the executive branch in three-fourths
of the states. Legislative hearings on judicial budget requests take place on a
regular basis in 38 out of 45 states. (See Table 3-4.) Executive branch
hearings occur in a majority of states. Representatives of the judicial branch
are always present at legislative or executive branch budget hearings.
It is essential that relationships continue between the judicial branch and
those external authorities—state legislatures and county boards—entitled to
set limits on judicial funding. Lines of communication must exist, so that
timely information may be transmitted between court officials and legislative
budget-makers. How such communication takes place and what strategies are
pursued in legislative relations are also important. Court systems should be
willing and able to communicate a high level of intelligible information to
legislators and legislative staff in those states where the legislature has a high
degree of power in the budget process.' Contact with the legislature must be
coordinated so that parts of the court system do not work at cross purposes.
Contact should be seen by both sides as a continuous procesg, rather than
something initiated by the judicial branch. (See Table 3-6.)
 170

Thus far, discussion of external relations has focused primarily on

relations with state legislatures rather than state executive officials. While
contact with executive officials would be sharply reduced if recommendations
were adopted to eliminate executive supervision of the judicial budget process,
court systems in states with a tradition of strong executive budgets would still
be likely to face critical review by executive officials. Even if the judicial
branch submitted its budget directly to the legislature and the executive were
prevented from revising judicial estimates, executive budget officers might
attempt to influence legislative decisions on the court budget. In states with
this pattern of executive involvement, it would be wise to maintain regular
contact with the executive branch. 4 If relations with executive budget officials
are maintained, they should be based on a model of negotiation rather than
supervision.
Although lawsuits to obtain court funding under the doctrine of inherent
powers may be inconsistent with a cooperative pattern of legislative-judicial
relations and a budget system which emphasizes fiscal planning, such
litigation may be necessary, especially if county-funded courts are deprived of
necessary financial support, or are given strict line-item budgets that prevent
internal transfers of funds to meet emergency needs. In fact, county-funded
courts that invoked the inherent powers doctrine still reported the existence of
cooperation and contact between courts and county budget authorities. While
this doctrine has rarely been used at the state level, it can be interpreted to
limit external authority of state officials over aspects of the judicial budget
process.

Internal Relations

If the recommendations summarized thus far were implemented, state court

systems would acquire more power over their own operations than almost any
judicial branch has today. Limitations on external authority would redistri-
bute budget screening, line-item appropriation, and expenditure control
powers from executive budget officials and legislators to judicial branch
officials. The exercise of judicial branch responsibility for its own internal
fiscal affairs will require development of the personnel and procedures
necessary for effective use of newly acquired or enhanced power. An active
and institutionalized network of external communication will place the
judicial branch in a stronger position to obtain approval for its budget
requests, so that necessary judicial resources can keep pace with increasing
internal administrative power. These developments will inevitably affect the
distribution of power within the court system itself and within individual
multi-judge courts. It is essential, therefore, to consider the impact of
organizational changes on the distribution of power and responsibility within
courts and court systems and the relations between individual units within the
larger judicial branch.
 171

As a general proposition, increased powers and responsibilities acquired

by courts and court systems will tend to increase administrative centralization
of the judiciary. Budgets for state-funded judicial branch activities would be
centrally prepared or centrally reviewed by an administrative office respon-
sible to either the chief justice of the state court of last resort or to a council of
state judges. Decisions on the internal allocation of fiscal resources would be
made by the central administrative office under guidelines approved by the
judicial body with statewide rule-making authority (in most states, the court
of last resort). Accounting, pre-audits, allotments, and other expenditure
controls would be centered in the central administrative office. Judges most
heavily involved in legislative relations (usually the state chief justice and chief
judges of other state-funded courts) would gain more influence over appro-
priations decisions than other judges. County-funded courts would also be
likely to see increasing centralization of administrative power in professsional
administrators and the chief or presiding judge for those courts.
Another dimension is added if states adopt unitary budgeting and take
over full funding of all elements of their court systems. The budgetary roles of
state court administrative officials and state chief justices would be enlarged,
and central power would be extended over a wider range of judicial activities.
Since limitations on external supervision of the judicial budget process should
be accompanied by the judiciary's taking responsibility for its own fiscal
affairs, and since this assumption of responsibility requires that a court or
court system be large enough to acquire necessary specialized fiscal skills,
unitary budgeting may be necessary in many states in order to implement
effectively the recommendations in this report. Unitary budgeting may be
necessary for two reasons: (1) state court systems that receive little state
money may be unable to acquire sufficient fiscal and management skills; and
(2) smaller courts funded by smaller or more frugal county governments may
also be unable to acquire the tools of planning and evaluation necessary to an
effective budget process.
If this analysis is valid, state court systems are in a paradoxical situation:
they seek fiscal independence from executive supervision, because the rule of
law requires that courts be treated as separate institutions not subservient to
overall government plans and demands; once granted fiscal independence,
they would develop an internal administrative system that would make state-
funded lower courts subservient to the administrative direction of statewide
courts of last resort and statewide court administrators and would widen the
gap between the administrative power of a chief or presiding judge and that of
his theoretically equal colleagues. Such a paradox can be avoided: state court
systems should not ask for the decentralization of authority and responsibility
to a separate judicial branch and then impose an overly centralized hier-
archical administrative system within the judicial branch.
Increased powers over judicial fiscal affairs must be distributed among
elements of the judicial branch so that both state and local judicial needs are
served. When a central administrative office prepares an overall judicial
 172

budget, it must provide mechanisms for participation of all courts and

agencies affected by that budget. Major administrative policy decisions—for
example, what budget priorities will be established, what management
guidelines will be applied, what procedures will be followed in evaluation,
what multi-year planning mechanisms will be developed—should not be
made solely by a central administrative office or the members of a single
court. Any judge holding a position that includes administrative responsi-
bilities (chief justice, chief judge, presiding judge) should serve for a fixed
term with limited opportunity for reappointment. He should be appointed by
the judges of the court for which he is responsible, or by the judges of the
system for which he is responsible.
Planning requires a combination of central coordination and decentra-
lized participation. Systemwide officials can see inequalities from place to
place within a state; local court officials can see the difficulties of integrating
court operations with those of other agencies within the work flow. Judicial
system planning is still new, and appropriate combinations of central and
local participation and control are not yet clear. An appropriate mix of
central and local administrative responsibilities in one state may be in-
appropriate in another state. It is clear, however, that modern, efficient, and
independent court systems must be careful that the growing responsibilities of
systemwide administration do not result in the excessive centralization of
power within the judicial branch. Court systems must develop techniques for
effective management and planning that spread administrative power
throughout all elements of the judicial branch.
Decentralization has its limits too. The judicial budget process should not
be so decentralized that individual courts submit their budgets separately to
executive or legislative officials. State funding should not come entirely in the
form of grants to county-funded courts, regardless of whether those courts
exercise responsibility for developing and implementing their own budgets.
The best system at this particular point in time may be a hybrid approach
requiring that (1) courts be funded largely at the state level; (2) state funding
operate through a unitary budget system for all courts, except those having an
internal capacity to manage and plan their own affairs; and (3) those courts
exempt from unitary budgeting receive state grants distributed by formula
through the central administrative office. Such grants should cover most of
the budget needs of such courts, with provision that county governments may
supplement the state grants. As some court systems move to regional
organization, it may be possible that court regions can acquire an internal
planning and management capacity, so that they can also administer their
affairs without day-to-day supervision of a central state administrative office.
In turn, however, local courts and court regions with internal capacity to
manage and plan must also carry out those functions in a way that combines
systemwide coordination with regional or local participation in the exercise of
decentralized administrative power.
 173

These recommendations assume that local courts and court regions will
take on the responsibility necessary for adequate fiscal management and fiscal
planning. Legislatures do not like to hand out money without being able to
hold someone accountable for how it is spent. Unless courts and court systems
at state, regional, and local levels accept their responsibilities and coordinate
their management and planning efforts within the judicial branch, they could
face demands for legislative or executive intervention in the name of
accountability. A call for decentralization of judicial administration is not a
call for fiscal irresponsibility; it is a call for placing administrative responsi-
bility at the points in the judicial system where most effective performance will
result.
Finally, any move toward unitary budgeting or general state funding of a
court system must take into account existing patterns of external authority at
state and local levels. If the state executive branch exerts substantial influence
over the state judicial budget by exercising its power to revise judicial budget
requests and by imposing a variety of expenditure controls on the judicial
branch, adoption of general state funding may be unwise. Increasing state
funding of the court system would simply increase the potential range of state
executive intervention. Conversely, if the state court system is relatively free
from the inappropriate exercise of external authority, adoption of state
financing through a combination of unitary budgeting and centrally dis-
tributed grants should be sought. In short, financial gain should not be the
primary criterion for advocating increased state financing. Courts require
adequate public funds to do their job. But courts that cannot do their job
independently cannot long survive as courts, no matter how efficiently they
operate on a day-to-day basis.
Court budgeting is not a problem. Therefore it cannot be solved. No
specific set of standards can be laid down. Court budgeting is a process—part
of the job of making a court system work. As such, it can be made more useful
and relevant to each of the court systems in which it takes place. The budget
process can enhance the independence of the judiciary and can provide the
judiciary with a means of obtaining and allocating needed resources. Court
budgeting can also undermine judicial independence and sacrifice justice in
the name of fiscal limitations. How court budgeting is used will be determined
largely by the efforts of courts to put this process to work in the service of
justice and judicial independence.
Appendix
 Appendix

Selected Statutory and

Constitutional Provisions

States that Limit Executive Review, Revision, or Supervision

of Judicial Budget Process

Independent Access States that Also Exclude the Executive

Branch from the Judicial Budget Process

North Dakota. The budget requests and expenditures for the legislative and
judicial branches of this state shall not be subject to the provisions of this
chapter [titled "Office of the Budget"] and such budget requests shall be
submitted directly to the legislative assembly with informational copies of
such budgets provided to the director of the budget not later than November
fifteenth in each year preceding a session of the legislative assembly. (N.D.
Century Code § 54-55.1-13. Language adopted in 1965.)

Nevada. Agencies, bureaus, commissions and officers of the legislative

department and the judicial department of the state government shall, at the
request of the chief [of the budget division of the department of adminis-
tration], submit to him for his information in preparing the executive budget
the budgets which they propose to submit to the legislature. (Nev. Rev. Stat.
§353.210(3).)
Except as provided [in the section quoted above], the provisions of [the
State Budget Act] do not apply to agencies, bureaus, commissions and
officers of the legislative and judicial departments of the state government.
They shall submit their budgets to the legislature in such form as shall be
prescribed by the legislative commission. (Nev. Rev. Stat. § 353.246, added
in 1963.)

Hawaii. SECTION 1. Findings and Purpose. The Constitution of the State

of Hawaii provides for three separate and co-equal branches of government,
the executive branch, the judicial branch, and the legislative branch.
The legislature finds that, although the Constitution incorporates the
principle of separation of powers and the principle that no one branch of
government shall dominate another branch, the Hawaii Revised Statutes are
not completely consistent with these constitutional principles. This is partic-
ularly the case with respect to those statutes which appear to permit the
executive branch to exercise various administrative controls over the judiciary

177
 178

and its courts and the legislature and its agencies. Such statutes are in conflict
with the constitutional status of the judicial branch and the legislative branch
as separate and co-equal branches of government.
The purpose of this Act is to clarify the Hawaii Revised Statutes and to
bring the statutes into conformance with the separate and co-equal status
intended by the State Constitution for the executive branch, the judicial
branch, and the legislative branch.
SECTION 2. . . . Services to the judiciary and legislature. Any executive
department may provide services to the judiciary and the legislature, but
nothing in this part and this chapter shall be construed as granting any
authority to the governor or any department to exercise control over the
organization, programs, functions, operations, and expenditures of the
judiciary and the legislature ....
SECTION 15. Section 601-2, Hawaii Revised Statutes, is amended to
read as follows:
(b) [The chief justice] shall possess the following powers, subject to such
rules as may be adopted by the supreme court. (5) To exercise exclusive
authority over the preparation, explanation, and administration of the
judiciary budget, programs, plans, and expenditures, including without
limitation policies and practices of financial administration and the estab-
lishment of guidelines as to permissible expenditures, provided that all
expenditures of the judiciary shall be in conformance with program appro-
priations and provisions of the legislature ....
(c) The budget, six-year program and financial plan, and the variance
report of the judiciary shall be submitted by the chief justice to the legislature
in accordance with the schedule of submission specified for the governor in
chapter 37 and shall contain the program information prescribed in that
chapter. By November 1 of each year preceding a legislative session in which a
budget is to be submitted, the chief justice shall provide written notification to
the governor of the proposed total expenditures, by cost categories and
sources of funding, and estimated revenues of the judiciary for each fiscal year
of the next fiscal biennium. [Act 159, Session Laws of Hawaii (1974).]

Independent Access States that Prohibit Executive Revision

ofJudicial Budget Requests but Require the Judicial Budget
to Follow Formats and Procedures Established by Executive
Officials

Colorado. The court admnistrator, subject to the approval of the chief justice,
shall prepare an annual budget request upon forms and according to
procedures agreed to by the executive director of the department of
administration and the joint budget committee of the general assembly. The
budget request documents and such additional information as may be
 179

requested shall be submitted to the department of administration and the joint

budget committee according to the same time schedule for budgetary review
and analysis required of all executive agencies. The governor shall include his
recommendations for court appropriations as part of his regular budget
message ....
[Colo. Rev. Stat. § 37-11-8(b), 1969 Supplement. Note that this language
is more restrictive than earlier law, which stipulated that the Administrative
Code "shall not be construed to apply to the judiciary nor the legislature,
except when expressly specified." This provision excluded the executive
branch from authority over judicial budget requests. See Colo. Rev. Stat.
§3-1-2(2),19631

Ohio. In the preparation of state budget estimates the director of finance

shall, not later than the fifteenth day of September in the year preceding the
regular session of the general assembly, distribute to all departments, offices,
and institutions of the state the blanks necessary for the preparation of budget
estimates, which shall be in the forms prescribed by the director to procure
information concerning the revenues and expenditures for the two preceding
fiscal years, and appropriations made by the previous general assembly, the
expenditures therefrom, encumbrances thereon, and the amounts unencum-
bered and unexpended, an estimate of the revenues and expenditures of the
current fiscal year, and an estimate of the revenues and amounts needed for
the respective departments, offices, and institutions for the two succeeding
fiscal years for which appropriations have to be made. Each department,
office, and institution shall, not later than the first day of November, file in the
office of the director its estimate of receipts and expenditures for the
succeeding biennium.
Each department, office, Sand institution shall, not later than the second
Monday in January, file with the chairman of the finance committees of the
senate and house of representatives a duplicate copy o f such estimated budget.
Such budget estimate shall be accompanied by a statement in writing
giving facts and explanation of reasons for each item of expenditure
requested. The director may make further inquiry and investigation as to any
item desired. He may approve, disapprove, or alter the estimates, excepting
those for the legislative and judicial departments of the state. . . . (Ohio Rev.
Code Ann. § 125.06.)

Conduit States (Executive Officials Transmit Judicial

Budget Requests to Legislature without Revision)

Arizona. The judiciary and the legislature shall not be subject to the control of
the governor in the preparation and submission of budgets, but such
organizations shall submit their requests for appropriations for the ensuing
 180

fiscal year to the governor for review by the legislature. (Ariz. Rev. Stat. Ann.
§35-116.B.)

Delaware. On or before November fifteenth, biennially, in the year next

preceding the convening of the General Assembly, estimates of the financial
needs of the State Judiciary for each of the two fiscal years of the ensuing
biennial period, shall be furnished to the [Budget] commission by the Clerk of
the Supreme Court, and certified by him....
All of the data relative to the legislative branch of the Government and the
State Judiciary shall be for the Commission's information and guidance
in estimating the total financial needs of the State for the ensuing biennial
period; but none of these estimates shall be subject to revision or review by the
Commission and must be included in the budget report as prepared by it.
(Del. Code Ann. § § 29-6331 (b) and (c).)

Georgia. Budget estimates for the judiciary shall be prepared by the Chief
Justice of the Supreme Court and the Chief Judge of the Court of Appeals and
such other judicial officers as appropriate, and shall be submitted at the same
time to the Director of the Budget as other budget estimates are submitted.
The State Treasurer shall assist in the preparation of these budget estimates, if
requested.
All of the data relative to the legislative and judicial branches of the
Government shall be for the Budget Bureau's information and guidance in
estimating the total financing needs of the State for the ensuing biennium
period, but none of these estimates shall be subject to revision or review by the
Budget Bureau and must be included in the budget report as prepared by it.
(Ga.Code Ann. § § 40-409.3 and .4.)

Kansas. In the case of the judiciary, the chief justice of the supreme court
shall certify and request the amounts necessary to pay the salaries and
expenses of the justices of the supreme court, judges of the district courts . . .
[etc.], which request shall include amounts necessary to meet the operating
cost of the supreme court and such other expenses as the chief justice of the
supreme court may deem likely and proper and such amounts shall be
included by the incoming governor in his recommendations to the legislature.
(Kan. Stat. Ann. § 75-3717.)

New York. Itemized estimates of the financial needs . . . of the judiciary,

certified by the comptroller, shall be transmitted to the governor not later than
the first day of December in each year for inclusion in the budget without
revision but with such recommendations as he may deem proper. (N.Y.
Const. art. 7, § 1.)

Rhode Island. Itemized estimates of the financial needs of the legislature and
 181

of the judiciary shall be submitted by the [executive branch] budget officer to

the governor on or before such first day of October for inclusion in the budget
with such recommendations by the governor as he may deem proper to submit
to the general assembly. (R.I. Gen. Laws § 35-3-5.)
Notes
 Notes

Introduction

1. Institute of Judicial Administration, State and Local Financing of the

Courts (tentative report, April 1969), Chapter V, pp. 63-75.
2. For discussion of these questions in the context of judicial adminis-
tration, see Edward C. Gallas, "The Courts as a Social Force," 31 Pub.
Admin. Rev. 125-33 (March/April 1971); and Jerome S. Berg, "Assump-
tion of Administrative Responsibility by the Judiciary: Rx for Reform," 6
Suffolk Univ. L. Rev. 796-814 (Summer 1972).
3. James C. McRuer, The Evolution of the Judicial Process (Toronto:
Clarke Irwin, 1957), Chapter One.
4. For the best book on this subject at the state level, see Allen Schick,
Budget Innovation in the States (Washington: Brookings, 1971). See also S.
Kenneth Howard, Changing State Budgeting (Lexington, Ky.: Council of
State Governments, 1973); and S.K. Howard and C.A. Grizzle, eds.,
Whatever Happened to State Budgeting? (Lexington, Ky.: Council of State
Governments, 1972). For a review essay covering these three books and four
others, see Donald Axelrod, "Post-Burkhead: The State of the Art or
Science of Budgeting," 33 Pub. Admin. Rev. 576 (November/December
1973).

Chapter 1
Internal Organization of the
Budget Process

1. Four surveys have been published by the U.S. Department of Justice,

Law Enforcement Assistance Administration, from 1968-69 through
1971-72 as Expenditure and Employment Data for the Criminal Justice
System (Washington: U.S. Government Printing Office, 1970 through 1973).
Each report appears 18 to 24 months following the close of the fiscal year. An
earlier version with some statistics for 1967-68 is U.S. Bureau of the Census,
Criminal Justice Expenditure and Employment for Selected Large Govern-
mental Units (Washington: U.S. Government Printing Office, 1969).
2. These are Census Bureau classifications found in Table 6 of Ex-
penditure and Employment Data for the Criminal Justice System, 1971-72,
cited in note 1.
3. The median percentage of state funding falls between 30.6 and 30.7
percent. Because the distribution is skewed in the direction of the higher

185
 186

percentages, the mean is 40.9, although 33 states fall below the mean. If the
percentage figures are rounded off to the nearest whole percent, the mode
(four states) is 28 percent.
4. The differentiation of state court systems by the kinds of activities
that are state-funded is derived from the approach used in the Institute of
Judicial Administration study, State and Local Financing of the Courts
(tentative report, April 1969). (Hereafter cited as IJA Report.) The IJA
findings are summarized in tabular form in Advisory Commission on
Intergovernmental Relations, State-Local Relations in the Criminal Justice
System (Washington, D.C.: U.S. Government Printing Office, August 1971),
p. 110. (Hereafter cited as ACIR Report.)
5. Quoting ACIR Report, p. 110.
6. The Temporary Commission on the New York State Court System
and particularly Commissioner W. David Curtiss, Deputy Counsel Peter F.
Schwindt, and Richard Miller of Harbridge House provided helpful back-
ground on New York judicial financing. See the Commission's report, . . .
And Justice for All, (Albany, N.Y., January 1973), Part I, Chapter 3:
Financing the Court System, pp. 54-73.
7. Obviously, however, the utility of either measure depends in part upon
the accuracy of the measurement and classification of individual states
themselves. Note also that the two measures have a reasonably strong
statistical correlation with one another. (For example, Kendall's Tau B =
0.56; Tau C = 0.57.)
8. The IJA Report includes some preliminary measurement of quantity
and inclusiveness. Thomas F. Lane, then with Arthur Young, provided the
California example in a 1972 interview.
9. Various statistical measures were used to verify the extent to which
these two dimensions (breadth and organization) were related to one another.
In doing so, those states that appeared in two categories were eliminated from
the external preparation category and retained in the other category (either
central review and submission, or separate submission). As a result, for
example, Kendall's Tau B = 0.40, and Tau C = 0.39 (on a scale in which +1.0
is the highest positive relationship, -1.0 the highest negative relationship, and
0.0 shows no relationship).
10. Kendall's Tau B = 0.34, and Tau C = 0.35. For this cross-tabulation,
states were grouped in 9 categories by 1970-71 percentage of state funding
(10.1-20.0 percent, 20.1-30.0 percent and so forth).
11. See for example Geoffrey C. Hazard, Jr., Martin B. McNamara and
Irwin F. Sentilles, III, "Court Finance and Unitary Budgeting," 81 Yale L.J.
1286 (1972).
12. "Fiscal Problems of a State Court System," presented to the
Conference of Chief Justices, Seattle, Washington, August 11, 1972, p. 10.
 187

13. Quotations are taken from responses to State-Financed Courts (State

Court Administrator) Questionnaire, National Center for State Courts
(distributed July 1972).
14. Letter from R. Hanson Lawton, Iowa Court Administrator, to
National Center for State Courts, August 24, 1972.
15. Letter from John R. Fisher, Director of the Administrative Office of
the Delaware Courts, to the National Center for State Courts, July 6, 1972, as
amended by letter of July 15, 1975.
16. Quoting "State of Louisiana: State Court Budgeting Process,"
narrative statement prepared for the National Center for State Courts by
Frank V. Moise, Jr., Depufy Judicial Administrator, State of Louisiana,
August 10, 1972.
17. Kansas information from State Court Administrator Questionnaire
response. Michigan information from "Michigan Court Budgeting Process,"
narrative statement prepared by William R. Hart, then Michigan Court
Administrator, July 17, 1972.
18. Quoting "California: State Court Budgeting Process," narrative
statement prepared for the National Center for State Courts by Ralph N.
Kleps, Director of the Administrative Office of the Courts, Judicial Council
of California, July 1972.
19. Letter from Oscar Kraines, then Budget Officer, New York State
Judicial Conference, to National Center for State Courts, June 28, 1972.
20. Data drawn from County-financed Courts Questionnaire responses
prepared by Lester C. Goodchild, then Executive Officer, Criminal Court of
the City of New York, November 10, 1972.
21. Quoting State Court Administrator Questionnaire response.
22. Maryland discussion is based on interview with Frederick W.
Invernizzi, then Director of the Administrative Office of the Maryland
Courts, in Baltimore, July 21, 1972. A similar situation exists in the State of
Maine.
23. California statement; see note 18.
24. Louisiana statement; see note 16.
25. New Hampshire R.S.A.9:4-a (eff. July 1, 1969).
26. Letter from L.M. Cummings, Clerk of the Utah Supreme Court, to
the National Center for State Courts, August 21, 1972. The District Courts
did not have a statewide court administrator at that time, although the
statewide juvenile court system has such a position.
27. Quoting response to State Budget Officer Questionnaire, State Court
Financing Study, National Center for State Courts, August 1972. Responses
from other state executive budget officials are discussed in Chapter 2.
28. See Allen Schick, Budget Innovation in the States (Washington:
 188

Brookings, 1971), Chapter One, "The Function of Budgeting," published in

earlier form in Schick, "The Road to PPB: The Stages of Budget Reform," 26
Pub. Admin. Rev. 243-58 (December 1966).
29. Schick, Budget Innovation in the States, pp. 4-5.
30. Ibid., p. 2.
31. For an analysis of lay participation in judicial decision-making, see
Theodore L. Becker, Comparative Judicial Politics (Chicago: Rand
McNally, 1970), Chapter 6 and pages 382-3.
32. Schick, Budget Innovation in the States, note 29 at p.4.
33. See Chapter 5 of this volume, the section on expenditure control.
34. Interview with Harry 0. Lawson, Colorado State Court Adminis-
trator, Washington, D.C., July 1972.
35. See Allen Schick, "Systems for Analysis: PPB and Its Alternatives,"
in The Analysis and Evaluation of Public Expenditures: The PPB System, a
compendium of papers submitted to the Subcommittee on Economy in
Government of the Joint Economic Committee, U.S. Congress, 91st Con-
gress, 1st Session, 1969, 3 volumes, pp. 827-30.
36. See Schick's conclusion: ibid., vol. 3, pp. 833-4.

Chapter 2
External Relations in the Budget
Process: The Executive Branch

1. See California Gov. Code § 13320; Florida Stat. Ann. § 216.011

(d); Idaho Code § 67-3503; 6 Kentucky Rev. Stat. § 45.070; Rev. Codes of
Montana § 79-1013; New Hampshire Rev. Stat. Ann. § 9:1; New Jersey
Stat. Ann. § 52:27B-15; 71 Pennsylvania Stat. § § 221,222; Code of Laws
of South Carolina § 1-725; Utah Code Ann. § 67-1-7; Code of Virginia §
2.1-55.
2. Hawaii Rev. Stat. §37-62(1). But see note b, chapter 2.
3. Michigan Comp. Laws Ann. §21.5.
4. Minnesota Stat. Ann. §16.011.
5. Hawaii Rev. Stat. §601-2.
6. See Nebraska Constitution, art. V, sec. 8: "The court [Supreme
Court] shall prepare and recommend to the legislature a budget of the
estimated expenses of the court. . ." Relevant budget statutes are Nebraska
Rev. Stat. § §81-132, 134. The court system as a whole does not have
independent access.
7. Arkansas Stat. Ann. § 13-303 (C).
8. Iowa Code Ann. § 8.2; Louisiana Rev. Stat. § 39:4.B; Oregon Rev.
Stat. §291.002(7).
 189

9. West Virginia Code §5A-2-3; Wisconsin Stat. Ann. § 16.42.

Note also that article VI, section 51(10), of the West Virginia Constitution
states that the governor "may, in his discretion, revise all estimates except
those for the legislative and judicial departments."
10. Rev. Code of Washington Ann. § 43.88.090.
11. Maryland Constitution, art. III, sec. 52(11).
12. Illinois Ann. Stat. §127-35.2
13. For classification by breadth of state funding, refer to Table 1-2. For
classification by degree of internal coordination, refer to Table 1-3.
14. Hawaii Rev. Stat. §37-62(1). But see note b, chapter 2.
15. 6 Kentucky Rev. Stat. § § 45-010, 45-070, and 45-090; New
Hampshire Rev. Stat. Ann. § 9:1.
16. Utah Code Ann. § §67-l-7;63-2-20.
17. In the judicial branch, the questionnaires were sent to state court
administrators (and state chief justices in those states without court adminis-
trators); in the legislative branch, to chairmen of appropriations (budget)
committees in both houses, or co-chairmen of joint budget committees; in the
executive branch, to state budget officers. A number of locally financed courts
were also surveyed. In July 1972, Terrence M. Hansen, Executive Director of
the National Society of State Legislators in Chicago, Illinois, provided names
of legislative committee chairmen, and the Council of State Governments in
Lexington, Kentucky, provided names of state budget officers.
18. Letter from George W. Singleton, Clerk of the West Virginia
Supreme Court of Appeals, to the National Center for State Courts, August
7, 1972.
19. No data on this point were available for Ohio. These findings contrast
with those in IJA, State and Local Financing of the Courts (tentative report,
April 1969), pp. 67-70. Colorado is the only 1 of the 6 states in which the
judiciary has legal authority for direct transmission which was found to do so
by IJA. The IJA findings were based largely on closed-ended mail question-
naires of the judicial branch.
20. State Court Administrator Questionnaire. (Hereafter cited as
SCAQ.)
21. Quoting State Budget Officer Questionnaire. (Hereafter cited as
SBOQ.)
22. Ibid. The writer was unable to find any such provision in the
Washington Constitution. Executive branch authority to revise judicial
estimates is only partially limited by statute, but executive budget officials
apparently assume that they have no authority to revise.
23. SCAQ. The state budget office reported the percentage change was
"minimal."
24. SBOQ.
25. Ibid.
 190

26. Quoting "State of Louisiana: State Court Budgeting Process,"

narrative statement prepared for the National Center for State Courts by
Frank V. Moise, Jr., Deputy Judicial Administrator, State of Louisiana,
August 10, 1972. The Louisiana executive budget office reports doing
minimal review of judicial estimates "because the majority of the ex-
penditures are statutory"—that is, mandated. However, judicial budget
requests are still reduced by the executive ("less than 5 percent"). As
examples, the budget office reported a "recent request for an additional clerk
for each Supreme Court justice" and a "construction request for [a] new
District Court facility." See SBOQ.
27. SBOQ.
28. Interview with Frederick W. Invernizzi, then Director of the Adminis-
trative Office of the Maryland Courts, in Baltimore, July 21, 1972. Note
however the unusual provision of the Maryland Constitution (art. III, sec.
52.6) that prohibited the legislature from reducing the amounts recommended
for the judicial branch. That provision was repealed in the 1972 general
election.
29. The difficulty of preparing a zero budget—estimating the needs of an
entirely new organization—may have made it even more difficult for the
judiciary to overcome the executive recommendation. This illustration was
obtained in an interview with David Saari, director of the Center for
Administration of Justice, American University, Washington, D.C., June 28,
1972.
30. Letter from then Chief Justice Henry F. McQuade, Supreme Court of
Idaho, to the National Center for State Courts, August 1, 1972.
31. The complete Memorandum of Agreement is reprinted as Appendix
B of the IJ A report, State and Local Financing of the Courts.
32. SCAQ.
33. Letter from Robert N. Reeves to the National Center for State
Courts, August 29, 1972.
34. Question A.15 of the SCAQ. Note that no other alternatives were
provided, such as "both about the same" or "don't know."
35. Different results—showing less active executive alteration—were
obtained when state budget officers were asked the same question, with "both
about the same" and "don't know" alternatives shown on the questionnaire.
In "no authority" states, legislative officials were more likely to alter in 5 of 9
states (56 percent), executive officials in 2 of 9 (Delaware and Rhode Island,
22 percent), and both were "about the same" in 2 states (22 percent). In "full
authority" states, legislative officials were more likely to alter in 7 of 19 states
(37 percent), executive officials in only 3 of 19 (16 percent), and both about the
same in 9 of 19 states (47 percent). It is hard to test the validity of these
competing perceptions against the reality of actual budget cuts, since a
 191

legislature that acquiesces in executive cuts (and may therefore be considered

equally likely to alter) may not have done so without previous screening by
executive officials. The judicial branch may be more likely to take this factor
into account than the executive branch, so that judicial perceptions may be
more valid as a result.
36. Interview with Edward B. McConnell, then Administrative Director
of the New Jersey Courts, in Washington, D.C., July 7, 1972.
37. For the best known discussion of the importance of multiple measures
in the social sciences, see Eugene J. Webb et al., Unobtrusive Measures
(Chicago: Rand McNally, 1966), Chapter One.
38. This term is derived from James T. Brennan, "Judicial Fiscal
Independence," 23 U. Fla. L. Rev. 277 (Winter 1971). He uses the term to
apply to expenditure control as well, which practice will also be followed in
later chapters.
39. If a four-cell table is created with a treatment dimension (judicial
uniqueness and separation of powers on one side, general equality and
executive agency categories on the other) and with a breadth of funding
dimension (mixed general and general state funding on one side, limited and
itemized state funding on the other), Yule's Q: -.27. If a four-cell table is
created with a treatment dimension (as above) and a methods of organization
dimension (central preparation and central review and submission on one
side, separate submission and external preparation on the other), Yule's
Q:-.50.
40. Based on 1961-62 surveys, updated in 1965. The table is at pp.
84-87.
41. See Tabular Revision of/Budgeting by the States (Lexington, Ken-
tucky: Council of State Governments, April 1970), Table IX, pp. 9-10.
42. Ibid.
43. R.I.Gen. Laws §35-3-16. On the basis of this provision, the state
court administrator's office said the governor had an item veto "to the extent
that he can delete budget items and decrease amounts," but the power is
"seldom used." See SCAQ.
44. Committee for Economic Development (CED), Modernizing State
Government, A Statement on National Policy by the Research and Policy
Committee of the Committee for Economic Development (New York, July
1967), p. 49. The back cover of the report notes that the C ED "is composed of
200 leading businessmen and educators," and its trustees "generally are
Presidents or Board Chairmen of corporations and Presidents of univer-
sities."
45. West Virginia Const., art. VI, sec. 51(11).
46. New York Const., art. VII, sec. 3; art. VII, sec. 1, prohibits executive
revision of judicial budget requests.
 192

47. Quotation taken from Wisconsin Stat. Ann., Constitution art. 5, sec.
10, (Supp. 1972-73), citing the Attorney General's opinion of that date.
48. See for example, Wood v. State Administrative Board, 238 N.W. 16,
255 Mich. 220 (1931). The 1963 Michigan Constitution carried over the intent
of the language construed in Wood; see Constitution, art. V, sec. 19.
49. CED, Modernizing State Government, p.49.
50. West Va. Const., art. VI, sec. 51(11). The present study has not
surveyed the language of state constitutions on this specific point, and it is
likely that reduction of items occurs in more than two states.
51. SBOQ.
52. SBOQ, SCAQ; supplemented by interview with Jose S. San Nicolas,
Administrative Services Supervisor, Island Court of Guam, in Harriman,
New York, April 1973. In 1972, San Nicolas was Acting Director of the
Bureau of Planning, Budgeting and Management (the territorial budget
office). By virtue of his successive offices, he answered both questionnaires.
53. SBOQ.
54. Vernon's Texas Civil Statutes Art. 689a-4,5.
55. SBOQ.
56. SCAQ.
57. SBOQ.
58. Quoting "California: State Court Budgeting Process," narrative
statement prepared for the National Center for State Courts by Ralph N.
Kleps, Director of the Administrative Office of the Courts, Judicial Council of
California, July 1972.
59. CED, Modernizing State Government.
60. All quotations used in this section are from SBOQ. The quotations are
not identified by state.
61. The first meaning given in Webster's New World Dictionary.
62. See David Freeman, Creeps (Toronto: University of Toronto Press,
1972).
63. For a discussion of truncation, see Foreign Direct Investment in
Canada (Ottawa: Government of Canada, 1972),pp.405-11.
64. See Chapter 6 of Allen Schick Budget Innovation in the States
(Washington: The Brookings Institution, 1971), 191: "In the PPB frame-
work, technique is the translation of planning and analytic concepts into
operational form. . . . But technique alone cannot change the way budget
makers behave and decide; it cannot produce analysis or compel budgeters to
ground their decisions on a thorough appraisal of public objectives. The acid
test of every technique must be the programs and decisions it stimulates, not
the documents that are turned out."
 193

Chapter 3
External Relations in the Budget
Process: The Legislative Branch

I. Questionnaires were sent to chairmen of the relevant committees

(appropriations, finance, budget, and so forth) in all 50 states (to co-chairmen
of joint committees when appropriate), so that views of leaders in both houses
could be obtained. Nebraska is the only state with a unicameral legislature.
2. See discussion of item veto in Chapter 2.
3. Quoting response to the Legislative Questionnaire (hereafter cited:
LQ).
4. LQ.
5. Letter from David B. Klingaman, Deputy Chief Clerk of the New
York Court of Claims, to the author, May 10, 1973. Italics in original.
Presiding Judge Fred A. Young was a former state Republican Chairman.
(For his biography, see The New York Red Book 1973, pp. 339-40.)
Following the retirement of the clerk and presiding judge, however, the court
"has had its budget requests severely questioned and limited." See letter from
Klingaman to National Center for State Courts, July 17, 1975.
6. LQ.
7. LQ and State Court Adminstrator Questionnaire. (Hereafter cited as
SCAQ).
8. SCAQ.
9. Ibid.
10. W. Va. Const., Art. VI, Sec. 51(5). The same constitutional limita-
tions appeared in the original "Budget Amendment" ratified in 1918.
11. SCAQ. There are discrepancies between the court clerk's answers and
those of the Chairman of the House Finance Committeee, who responded that
both hearings and discussions have taken place. Since the appointment of a
state court administrator as of January 1, 1975, contact with the legislature
has become more frequent and routinized.
12. Interview with Frederick W. Invernizzi, Director of the Adminis-
trative Office of the Maryland Courts, in Baltimore, July 21, 1972.
13. Letter to Hon. John W. Douglass, Member of the Maryland House of
Delegates, from Francis B. Burch, Attorney General, and Martin B.
Greenfield, Assistant Attorney General, February 28, 1972. The legal issue
was complicated by the fact that the Legislature did not increase the judges'
salaries as much as the governor had recommended, so that the Director's
salary increase was reinstated only to the point that it equalled the judges'
salary increase ($5,000 rather than $7,500).
14. "Judicial Budget Bill Gains," Washington Post, February 12, 1972, p.
D16.
 194

15. Hon. Edward E. Pringle, ChiefJustice of Colorado, "Fiscal Problems

of a State Court System," speech delivered to the Conference of Chief
Justices, Seattle, Washington, August 11, 1972. Roughly half the state
legislatures participate in the appropriations process through joint com-
mittees rather than separate committees in each house (the congressional
model).
16. Ibid. While a day is set aside, legislative questionnaire responses
indicate the full time may not normally be used. The JBC staff director reports
hearings "running perhaps a day," while the Senate Appropriations com-
mittee chairman (then JBC vice-chairman) reported hearings of "one to one-
and-a-half hours."
17. Interview with Harry 0. Lawson, Colorado State Court Adminis-
trator, in Washington, D.C., July 1972.
18. The quote and illustration are drawn from the Lawson interview cited
in note 17.
19. Pringle, "Fiscal Problems of a State Court System."
20. LQ from staff director of Colorado J BC.
21. Ibid.
22. Ibid.
23. Lawson interview, July 1972.
24. Pringle, "Fiscal Problems of a State Court System."
25. Lawson interview, July 1972.
26. See Richard Fenno's classic article, "The House Appropriations
Committee as a Political System: The Problem of Integration," 56 Amer.
Pol. Sci. Rev. 310 (June 1962), and Fenno's larger study, The Power of the
Purse: Approprations Politics in Congress (Boston: Little Brown, 1966).
27. Thus a recent study of the committee by Stephen Horn was titled,
Unused Power: The Work of the Senate Committee on Appropriations
(Washington: Brookings, 1970).
28. SCAQ.
29. LQ.
30. SCAQ.
31. Ibid.
32. House Subcommittee No. 5 of the Committee on the Judiciary,
Hearings, Law Enforcement Assistance Administration, 93rd Cong., 1st
Sess., 424 (1973). The technique is not confined to legislative review.
Kentucky's state executive budget office reported that "only minor changes
are made" in the judicial budget "if there are not a lot of expansion requests."
SBOQ.
33. SCAQ.
34. LQ.
 195

35. SCAQ.
36. Ibid.
37. See section on the item veto in Chapter 2.
38. SCAQ. Considerable difficulty was cited in obtaining increased
numbers of and salaries for judges.
39. For the following, I am indebted to Mr. William G. Lunney, Assistant
to the Administrative Director of the Wisconsin Courts, and Ms. Jean M.
White, then Director of Information Services, for answering questions by
letter and phone, September 1973.
40. In Delaware, "burial of service men and extradition expenses are
appropriated on an open-end basis." See Budgeting by the States (Chicago:
Council of State Governmments, 1967), pp. 95-96.
41. Interview sources, 1972.
42. In re Janitor of Supreme Court, 35 Wisc. 410 (1874). But this is a rare
use of the inherent powers doctrine at the state level, since most examples
involve local funding; see Chapter 6 below.
43. LQ.
44. LQ.
45. Pringle, "Fiscal Problems of a State Court Systems."
46. Data on per capita expenditure and other measures of state level
spending may be found in Chapter II of IJA, State and Local Financing of the
Courts (tentative report, April 1969).
47. Five state court administrators were interviewed personally or asked
to submit extended memoranda rather than answer closed-ended questions.
In states without state court administrators, the chief justice of the court of
last resort was asked to complete the questionnaire. Note also that a tenth
expenditure category, "increased numbers of supporting personnel," was
included in the SCAQ and inadvertently omitted from the LQ.
48. If two legislative questionnaires came from a single state, an identical
response from each questionnaire is counted only once. Many respondents
checked more than one item, so that the number of hurdles is greater than 31.
None of the eight "other" replies cited an element of the legislative process.
Kentucky and Rhode Island legislators indicated that executive agencies were
more important hurdles, and Mississippi also cited its Commission of Budget
and Accounting, a mixed executive—legislative agency. Minnesota replied
that "none of the above" were hurdles, and other states wrote in a similar vein:
"No hurdle really. There is close cooperation to ensure sufficient funds."
(Georgia); "Viewed on its own merits." (Missouri); "Depends on specific
request." (Hawaii).
49. Regarding the validity of the responses: questionnaires were directed
to committee chairmen and were often answered by staff members on behalf
of the committee chairmen. Therefore the preponderance of references to
 196

committees and staff may reflect at least in part the tendency of participants in
any organization to stress the importance of their own role. However, since
half the legislative respondents gave more than one answer, and the answers
are generally consistent with those provided by judicial branch respondents,
the data seem to provide an accurate reflection of events in the states.
50. See two Pennsylvania legislative questionnaires. In West Virginia, the
court reported no hearings, but the legislative committee chairmen replied
that hearings were held.
51. SCAQ.
52. LQ. The state court administrator indicated that hearings are not
held, suggesting that the court system has not requested them.
53. SCAQ.
54. LQ.
55. SCAQ.
56. LQ.
57. If difficulty scores are dichotomized, Yule's Q: -.19, indicating a
slight negative relationship; the degree of difficulty is slightly higher in states
where committee hearings are always held.
58. Both legislative and judicial questionnaires.
59. Both from legislative questionnaires.
60. If difficulty scores are dichotomized, Yule's Q: = -.26.
61. All from legislative questionnaires. The Idaho LQ reported in this
category an appearance by the Commission on Uniform Laws, but such an
appearance was probably in support of a budget item for the Commission's
own work rather than in support of the court system.
62. LQ. The House committee chairman went on to suggest that
consolidation of the bills would be helpful.
63. LQs only. Note that state court administrators in Kentucky and
Vermont both reported discussions, while Nevada, New Jersey, Ohio, and
West Virginia court officials reported no discussions.
64. LQs. For this item, an "other" category was included. Three states
used this category to suggest that discussions go on throughout the year;
Idaho specifically noted discussions taking place "between legislative ses-
sions."
65. LQ. Minnesota legislative staff responded that "channels for dis-
cussion are always open," and added that "the Chairman of the
[House] Appropriations Committee always invites the Chief Justice to talk to
the committee and he always accepts."
66. LQ. In six states, legislative respondents volunteered that various
legislative staff personnel also initiated discussions. Had legislative staff been
 197

included as a separate alternative, it would undoubtedly have been mentioned

more frequently.
67. See note 47, and note that the SBOQ included all ten budget items.
68. If both executive and legislative difficulty scores were divided in half
rather in quartiles, the resulting four-cell table would show Yule's Q = .45,
indicating a moderate positive relationship between the two scores.
69. If the legislative difficulty scores are divided in half rather than in
quartiles, the resulting four-cell table would show Yule's Q = .13, indicating
the existence of only a very slight positive relationship.
70. If the legislative difficulty scores are divided in half rather than in
quartiles, and the four activity categories are partially merged (limit-
ed/itemized compared with mixed general/general), the resulting four-cell
table would show Yule's Q = .01, indicating that no relationship exists. Note,
however, that if only "limited" and "general" categories are used in the
equation, Q = .31.
71. If difficulty scores are divided in half rather than in quartiles, and the
budget organization categories are partially merged (central prepara-
tion/review compared with separate submission/external preparation), the
resulting four-cell table would show Yule's Q = .60, a high relationship.

Chapter 4
External Relations in the Budget
Process: Expenditure Control

1. The Book of the States, 1972-73, (Lexington, Ky.: Council of State

Governments, 1972), pp. 166-70.
2. Richard W. Gable, "Modernizing Court Administration: The Case of
the Los Angeles Superior Court," 31 Pub. Admin. Rev. 133, 137.
3. The audit agencies are listed in The Book of the States, pp. 166-70.
4. State Court Administration Questionnaire. "However," added the
state court administrator, "the State Treasurer is audited each year by a
private accounting firm."
5. SCAQ.
6. Ibid.
7. Interview with Harry 0. Lawson, Colorado State Court Adminis-
trator, in Washington, D.C., July 1972, and subsequent information.
8. Interview with William G. Lunney, Assistant to the Administrative
Director, Supreme Court of Wisconsin, by telephone, September 1973.
9. Quoting "Michigan Court Budget Process," narrative statement
 198

prepared for the National Center for State Courts by William R. Hart, then
Court Administrator, State of Michigan, July 17, 1972.
10. Quoting "State of Louisiana: State Court Budgeting Process,"
narrative statement prepared for the National Center for State Courts by
Frank V. Moise, Jr., Deputy Judicial Administrator, State of Louisiana, July
6, 1972.
11. Quoting "California: State Court Budgeting Process," narrative
statement prepared for the National Center for State Courts by Ralph N.
Kleps, Director of the Administrative Office of the Courts, Judicial Council of
California, July 1972.
12. Letter from then ChiefJustice Henry F. McQuade, Supreme Court of
Idaho, to the National Center for State Courts, August 1, 1972.
13. Interview with Frederick W. Invernizzi, Director of the Adminis-
trative Office of the Maryland Courts, in Baltimore, July 21, 1972; quotation
based on notes.
14. Interview with Edward B. McConnell, Administrative Director of the
New Jersey Courts, in Washington, D.C., July 7, 1972; paraphrased from
notes.
15. Letter from David B. Klingaman, Deputy Chief Clerk of the New
York Court of Claims, to the author, May 10, 1973.
16. Ibid. "As a result," continued the Deputy Chief Clerk, "this court
works very closely with his staff."
17. Budgeting by the States, prepared for the National Association of
State Budget Officers (Chicago: Council of State Governments, 1967), pp.
100, 106.
18. State Budget Officer Questionnaire. Italics in original.
19. Data on executive branch allotment practice is taken from Budgeting
by the States, pp. 101-05.
20. SCAQ.
21. Budgeting by the States, p. 101, reported that Arkansas had no
allotment system.
22. 31 U.S. Code 665 (d) (1).
23. 31 U.S. Code 665 (c).
24. Based on notes from a discussion in a Regional Workshop on
Budgeting, Planning and Financial Controls in Courts, sponsored by the
Institute for Court Management, Harriman, New York, April 1973.
25. Based on responses in state-funded courts questionnaires, which must
be considered in light of state (executive) budget officer questionnaires
discussed below.
26. Letter from Chief Judge T. John Lesinski, Michigan Court of
Appeals, to National Center for State Courts, July 26, 1972. His approach is
founded on art. VI, sec. 7 of the 1963 Michigan Constitution, which gives the
 199

Supreme Court control over its expenditures. The Chief Judge also notes that
the legislature customarily makes lump-sum appropriations to the courts,
dividing appropriations into line items for informational and not control
purposes.
27. Louisiana statement; see note 10.
28. Budgeting by the States, p.265.
29. Interview with Frederick W. Iiivernizzi, Director of the Adminis-
trative Office of Maryland Courts, in Baltimore, July 21, 1972; paraphrased
from notes.
30. Example drawn from telephone conversation with William H. Ad-
kins, II, Maryland State Court Administrator, July 31, 1975.

Chapter 5
State and Local Funding: Trends and
Comparisons

I. LEAA and Bureau of the Census, Expenditure and Employment Data

for the Criminal Justice System: 1968 69 (Washington: U.S. Government
-

Printing Office, 1970), p. 4. By 1970-71, "a total of 9,038 local governments"

were in the survey panel (quoting page 5 of the 1970-71 report).
2. Letter from Carolyn Y. Thompson, Governments Division, Bureau of
the Census, to the author, February 26, 1974.
3. Letter from A. Evans Kephart, Court Administrator of Pennsylvania,
to National Center for State Courts, July 19, 1972.
4. Ibid.
5.401 U.S. 371 (1971).
6. Interview with Frederick W. Invernizzi, Director of the Adminis-
trative Office of the Maryland Courts, in Baltimore, July 21, 1972. Invernizzi
also reported that the state court system pays for the costs of printing briefs
for indigent appeals. More recently the Maryland Court Administrator's
office drew on its contractual services budget to help pay for an additional
court reporter in an overloaded circuit court, even though court reporting
expenses have been traditionally local items. (Telephone conversation with
William H. Adkins, II, Maryland State Court Administrator, July 31, 1975).
7. Panel discussion by Charles B. Rodway, Jr., at Careers Conference of
the Institute for Court Management, Denver, Colorado, October 1972.
8. Interview with Invernizzi cited at note 6 above. See also the discussion
of statewide equality of court services in section on "Using the Budget to
Manage and Plan" later in this chapter.
9. The American Bar Association Commission on Standards of Judicial
Administration, Standards Relating to Court Organizations (Chicago:
American Bar Association, 1974), pp. 97-107, recommended full state
funding and unitary budgeting on the first and third grounds, but did not
 200

emphasize the second.

10. See "Financing Massachusetts Courts: A research project of the
American Judicature Society in conjunction with the Massachusetts Bar
Foundation, Inc., and the Association of Trial Lawyers of America (Mas-
sachusetts Chapter)" (1974), and Temporary Commission on the New York
State Court System, ...And Justice for All (Albany, N.Y., January 1973),
Part I, Chapter 3: Financing the Court System.
11. Arizona was chosen because of the interest and cooperation of Mr.
Marvin Linner, Administrative Director of the Arizona courts, who dis-
tributed the surveys to superior courts in conjunction with a study of budgets
and financial structure conducted by his office. The Michigan survey was
facilitated by the cooperation of Mr. Norman A. Paelke, Jr., Personnel
Consultant in the Office of the State Court Administrator, and by the author's
presence in the state in 1972-73.
12. Geoffrey C. Hazard, Jr., Martin B. McNamara and Irwin F.
Sentilles, HI, "Court Finance and Unitary Budgeting," 81 Yale L.J. 1286
(1972). See Chapter 6 below for a full discussion of the inherent powers
doctrine.
13. Both Edward B. McConnell, then New Jersey State Court Adminis-
trator, and Harry 0. Lawson, Colorado State Court Administrator, ex-
pressed this opinion in separate interviews in 1972.
14. Letter from Frank Zolin, Executive Officer of the Los Angeles
Superior Court, to the author, November 27,1972.
15. Court expenditures in Beaver County in 1971 ranked 13th out of 67
Pennsylvania counties. The Court of Common Pleas is a general jurisdiction
trial court.
16. Hazard et al., "Court Finance and Unitary Budgeting" pp. 1293-4.
Note that unitary budgeting has not brought post-auditing within the judicial
branch; the ABA Standards on Court Organization explicitly endorse post-
auditing by an "agency that is independent of the court system." See ABA,
Standards Relating to Court Organization, p. 105.
17. Hazard et al., "Court Finance and Unitary Budgeting," p. 1296.
18. Interview with Harry 0. Lawson, Colorado State Court Adminis-
trator, in Washington, D.C., July 1972. The quoted phrase is from ABA,
Standards Relating to Court Organization, p. 104. Note that Lawson's views
are generally reflected in the Hazard article and in the ABA Standards.
19. Lawson interview, July 1972.
20. Ibid.
21. Letter from Frank Zolin, Executive Officer of the Los Angeles
Superior Court, to National Center for State Courts, October 11,1972, p. 3.
22. Ibid., p. 4.
23. Ibid., p. 8. Quoting Zolin.
 201

24. Ibid., pp. 6-7.

25. Ibid., pp. 5-6.
26. Each of these support functions was cited by Zolin in his letter of
October II, 1972, at page 9, as examples of appropriate state judicial
administrative activities in California.

Chapter 6
The Separation of Powers and
Judicial Budget Processes

1. Jim R. Carrigan, "Inherent Powers and Finance," Trial Magazine

(November/December 1971), p.22. And see Ernest C. Friesen, Jr., Edward
C. Gallas and Nesta M. Gallas, Managing the Courts (Indianapolis: Bobbs-
Merrill, 1971) Chapter IV and Appendix B; William Scott Ferguson, Note,
"Judicial Financial Autonomy and Inherent Power," 57 Cornell L. Rev. 975
(July 1972); Editorial, "Fiscal Independence of the Judiciary," 54 Judicature
138 (November 1970).
2. Geoffrey C. Hazard, Jr., Martin B. McNamara and Irwin F.
Sentilles, Ill, "Court Finance and Unitary Budgeting," 81 Yale L.J. 1286
(1972). This article has also been distributed as Supporting Study Number
One of the American Bar Association Commission on Standards of Judicial
Administration. And note these comments in a letter from Henry P. Trawick,
Jr., criticizing Judicature's editorial endorsement of inherent powers: "I am
amazed that you support a doctrine that is so subversive of basic republican
philosophy. The lack of judicial restraint in many aspects of our society has
resulted in problems that the judicial department is not equipped to solve." 55
Judicature 209 (December 1971).
3. The latest edition of Carrigan's "outline on Inherent Powers of Trial
Courts to Provide Needed Court Personnel, Facilities and Equipment" was
issued in 1973 as Inherent Powers of the Courts by the National College of the
State Judiciary (University of Nevada, Reno, Nevada). The Fifth Revision
(1970), "prepared for the exclusive use of students in The National College,"
begins with the following note: "We hope to make this outline as complete as
possible and to keep it up to date. If other cases (including cases at the trial
court level, whether or not reported) come to your attention, we ask that you
notify the author with a copy to the National College .. .." For the complete
text of appellants' briefs in Judges of the Third Judicial Circuit of Michigan v.
County of Wayne, see Appendix A, State and Local Financing of the Courts
(tentative report), published in April 1969 by the Institute of Judicial
Administration at New York University Law School.
4. 153 Colo. 35,384 P. 2d 738 (1963).
5. See discussion of Colorado developments in Advisory Commission on
Intergovernmental Relations, State-Local Relations in the Criminal Justice
 202

System (Washington: U.S. Government Printing Office, August 1971), pp.

207-9.
6. 287 N.E. 2d 608 (1972).
7. Ibid., p. 615.
8. Ibid.
9. Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A. 2d 193
(1971).
10. Hazard et al., "Court Finance and Unitary Budgeting," p. 1288.
11. 172 N.W. 2d 436 (Mich. 1969); modified and opinion substituted, 386
Mich. 1,190 N.W. 2d 228 (1971).
12. O'Coin's v. Worcester, 287 N.E. 2d 608 (1972).
13. Carrigan, "Inherent Powers of the Courts," pp. 19-21.
14. See the first section of Chapter 2.
15. See O'Coin's v. Worcester, Supra at 615, quoting with approval State
ex rel. Hillis v. Sullivan, 48 Mont. 320 at 329, 137 P. 392 at 395. In contrast,
however, the Lake County (Indiana) Superior Court submitted its 1975
budget to county officials with a court order attached, following a successful
inherent powers suit in the previous year.
16. Letter from L.M. Jacobs, IV, Court Administrator of the Third
Judicial Circuit of Michigan, Detroit, to the National Center for State
Courts, August 29, 1972.
17. Interview materials, 1974.
18. See Ex parte Peterson, 253 U.S. 300 (1920), which held that a federal
district court has the inherent power to appoint an auditor to simplify issues
before a jury, and to impose costs on the parties; and U.S. v. Ritter, 273 F. 2d
30 (C.A. 10, 1959), cert. denied, 362 U.S. 950.
19. Interview materials, 1970. See also discussion of the O'Coin's case
cited in note a (above), which suggests that 0' Coin's increased the bargaining
power of Massachusetts courts.
20. W.B. Gwyn, The Meaning of the Separation of Powers (New Orleans:
Tulane University, 1965), p. 128.
21. Federalist No. 51. The passage is at page 321 of the Mentor edition of
The Federalist Papers (Mentor Edition, The New American Library, 1961).
22. Ibid., Federalist No.48 at p.310.
23. Pauling v. Eastland, 288 F.2d 126 (1960); cert. denied, 364 U.S. 900
(1960). The case is noted in "Recent Developments: Rights of Witness
Threatened with Congressional Contempt Citation Held Nonjusticiable in
Declaratory Judgement Action," 61 Colum.L.Rev. 1159 (1961). The Senate
subcommittee request that gave rise to the suit was again rejected by Pauling,
but no contempt citation was ever issued.
 203

24. Younger v. Harris, 401 U.S. 37(1971); Boyle v. Landry, 401 U.S. 77
(1971).
25. Tumey v. Ohio, 273 U. S. 510(1927); Ward v. Monroeville, 409 U.S.
57 (1972).
26. Quoting Conant's introduction in Arthur T. Vanderbilt, The Doctrine
of the Separation of Powers and Its Present-Day Significance (Lincoln:
University of Nebraska Press, 1963), p. vi.
27. Ibid., p. viii.
28. Reorganizing State Government (Chicago: Council of State Govern-
ments, 1950), p. 35, quoted approvingly by York Willbern in The 50 States
and Their Local Governments, James W. Fesler, ed. (New York: Knopf,
1961), p. 392. Willbern notes that by 1929, "every American state had
established a central budget office" (p. 391).
29. Allen Schick, Budget Innovation in the States (Washington: Brook-
ings Institution, 1971), p. 174. Use of the budget as a policy tool of the
governor is urged in Modernizing State Government: A Statement on
National Policy by the Research and Policy Committee of the Committee for
Economic Development (New York, July 1967). At pp. 48-49, the CED
report recommends extension of the item veto as part of its recommendations
to strengthen gubernatorial leadership: "Americans expect their chief execu-
tives to exert vigorous leadership in the formulation of the public policy,"
explains the report.
30. This was the situation in Philadelphia that gave rise to Carroll v. Tate,
442 Pa. 45, 274 A.2d 193 (1971).
31. Quoting report in the Detroit News, February 27, 1973, p. 11A.
32. Art. 11, sec. 5. The 1 percent requirement was originally placed in the
constitution by the voters in 1940. The 1963 section added language requiring
the commission to "return to the state treasury all moneys unexpended for
that fiscal year."
33. For a discussion of these questions, see Phillip L. Spector, "Financing
the Courts Through Fees: Incentives and Equity in Civil Litigation," 58
Judicature 330 (February 1975).

Chapter 7
Conclusions and Recommendations

1. Calculated on the basis of aggregate expenditures of all state and local

governments in the United States; see Table 1-1 and Census Bureau surveys
cited there.
2. See for example S. Kenneth Howard, Changing State Budgeting
 204

(Lexington, Ky.: Council of State Governments, 1973).

3. See Chapter 3, especially the discussion of distinctions between
buffer, overseer, collegial and critical patterns of legislative-judicial rela-
tions.
4. But see Table 3-8, which shows that the legislative difficulty score is
lower when executive changes are either significant or absent, while the
legislative difficulty score is higher when executive changes are minor.
Index
 Index
Act of Settlement of 1701, 152
Alabama, 81, 86, 96, 97, 118, 161
Alabama Judicial Article, 161
Alaska, 33n, 36-37, 40, 97, 98, 99, 109,
125 "
Alaska State Court, 36
Alderman's Courts (Delaware), 9
American Bar Association, 121
Anderson, James. R., ix-x
Arizona, 29, 31, 33, 41, 96, 97, 105, 109,
124, 125, 127-129, 131-133, 179-
180
Arkansas, 2, 32, 81, 86, 96, 105, 109, 118
Arthur Young Company, 11
Beaver County, Pa., 125n, 135
Becker, Theodore L., 129n
Belknap County, N.H., 125n
Berrien County, Mich., 124, 132
Boddie v. Connecticut, 120
Book of the States, The, 95, 96, 103n
Brennan, J., 153n
Budget process: external relations in, 25-
114; internal organization of, 5-24;
separation of powers and, 143-161;
See also Funding, state and local
Budgeting by the States, 34n,48, 103
Buffer legislature, 63-64
Burger Court, 154
Burger, Warren E., 22
Burke, John F., 145n
California, 5, 11, 17, 19, 20, 33, 49, 51,
52-53, 63-64, 66n, 75, 81, 82, 100,
103, 104, 115
California Assembly, 64
Carrigan, Jim R., 144, 146
Carroll v. Tate, 145,146,147
Central review and submission, 16-18
Christian, Winslow, ix
Cochise County, Ariz., 128
Collegial legislature, 64-66
Colonizer and the Colonized, The, 56n
Colorado, 9, 15, 23, 24, 29, 47n, 66n, 69-
71, 73, 77, 81, 84, 99, 115, 118, 119,
137-138, 139, 140, 141-142, 144,
178-179
Committee for Economic Development,
48
Conant, Michael, 155
Connecticut, 33n, 40, 51, 52, 53, 74, 81,
86, 96, 97, 99, 109, 110, 117
Connecticut General Assembly, 52n
Connors, John M., 145n
Constitution, U.S., 152
Constitutionalism and the Separation of
Powers, 150
County-funded courts, fiscal indepen-
dence of, 126-133
Criminal Court of the City of New York,
18, 125n, 134
Critical legislature, 72-74
Defensive legislature, 74
Deferential legislature, 66-67
Delaware, 9, 16-17, 29, 31, 41, 81, 96, 97,
105, 180
Denver County Court (Colorado), 9
District Court for Dis. IX v. Williams,
159n
Doctrine of the Separation of Powers and
Its Present-Day Significance, The,
155
England, 2, 150, 151
Executive branch, budget process and,
25-59
Expenditure control, 95
Expenditure and Employment Data for
the Criminal Justice System, 115
Federalist Papers, The, 151
Fenno, Richard, 72
Florida, 5, 8, 41, 78, 81, 82, 84n, 115
France, 150
Funding, state and local, 115-42
Gallas, Edward C., 97
General Services Administration, U.S.,
148, 160
207
 208
Genessee County, Mich., 124, 130, 132-
133
Georgia, 29, 31, 33-34, 81, 84n, 117, 180
Gila County, Ariz., 124, 132
Gravely. United States, 153n
Greenlee County, Ariz., 127
Guam, 48, 51, 80, 163n
Gwyn, W.B., 150,151
Hansen, Terrence M., 189n
Harris County, Tex., 2, 125n, 136
Hawaii, 29, 31, 40, 41, 78, 81, 96, 97, 104,
109, 177-178
Hazard, Geoffrey, 145,146
Hoover Commission, 21
House Appropriations Committee, 72
Houston, Tex., 2
Idaho, 8, 43, 81, 100, 103
Idaho Supreme Court, 35-36,37
Illinois, 7, 8, 30, 81, 96, 97, 115
Illinois House Appropriations Com-
mittee, 76
Indiana, 48, 83
Ingham County, Mich., 124, 130, 133
"Inherent Powers of the Courts, The,"
145n
"Inherent Powers of the Courts - Man-
agement Tool or Rhetorical Wea-
pon?" 145n
Inherent powers lawsuits, 143-149
In re Janitor ofSupreme Court, 145n
I nvernizzi, Frederick, 120
Iowa, 8, 15-16, 30, 81, 97
Jackson County, Mich., 124n, 130
Jarrell, Doris M., 160n
Joint Ways and Means Committee, 72
Judges for the Third Circuit v. County of
Wayne, 145
Judicial Conference and Appellate Divi-
sions, N.Y.C., 18
Kalamazoo County, Mich., 124, 130,
131, 132
Kansas, 8, 17, 29, 81, 86, 97, 180
Kavanagh, Thomas M., 159, 160n
Kent County, Mich., 132
Kentucky, 2, 31, 33n, 43, 78, 81, 85, 86,
97, 110, 115, 118
King County (Seattle), Wash., 125n, 133-
134
Kleps, Ralph, 66n
Lansing, Mich., 133
Law Enforcement Assistance Adminis-
tration, 23, 67, 115, 167
Lawson, Harry 0., 23, 66n, 69, 70-71,
137-138, 139, 141-142
Lawton, R. Hanson, 15
Legislative branch, budget process and,
61-93
Legislature: buffer, 63-64; collegial, 64-
66; critical, 72-74; defensive, '74;
deferential, 66-67; overseer, 68-69
Lesinski, T. John, Ill
Linner, Marvin, 200n
Los Angeles County Superior Court, 97,
I 25n, 134-135, 138-140, 142
Louisiana, 19, 30, 32, 34, 43n, 81, 100,
110, 111-112, 190n
McConnell, Edward B., 39, 73, 102, Il l
McMillan, 36
McQuade, Henry F., 35, 37, 100
Madison, James, 151
Maine, 8, 43, 48, 83, 110,118
Maine Supreme Judicial Court, 159n
Maricopa County, Ariz., 127, 128, 132n
Maryland, 8, 18, 30, 31, 35, 48, 61n, 67-
68,74,82,101,112,115,118,119
Maryland District Court, 119
Massachusetts, 5, 31, 33n, 81, 83, 86, 97,
103, 115, 119, 123, 125
Meaning of the Separation of Powers,
The, 150
Memmi, Albert, 59n
Michigan, 5, 8, 17, 81, 100, 117, 119, 123,
124, 125, 127, 129-133, 159
Minnesota, 33n, 43, 81, 82, 97, 104, 110
Minnesota Statutes, 26
Mississippi, 81,83
Missouri, 8, 18, 33n, 43n, 44, 73, 76-77,
80, 81, 83, 97, 105, 109
Missouri Senate Appropriations Com-
mittee, 73

Modernizing State Government, 48
Mohave County, Ariz., 128, 132n
Montana, 33, 86,97
National Conference on the Judiciary,
1971 Consensus Statement, 121
Nebraska, 8, 29, 31, 32, 43-44n, 97, 105,
118
Nevada, 27, 33, 43, 48, 74, 81, 86, 97, 105,
177
New Hampshire, 19, 31, 33n, 43n, 48, 81,
97, 109, 110, 115, 118
New Hampshire Supreme Court, 19
New Jersey, 5, 9, 33n, 80, 81, 97, 103, 105,
109,117
New Jersey Superior Court, 9
New Mexico, 115, 118
New York, 5, 9, 18, 20, 29, 48-49, 97, 117,
123, 125,180
New York Court of Claims, 9, 65, 98, 102
New York, N.Y., 74
North Carolina, 15, 33n, 40, 43, 44n, 48,
80, 81, 96, 97, 105,119
North Dakota, 27, 31, 32, 41, 49n, 81, 84,
86, 177
Oakland County, Mich., 124, 130, 131,
132
O'Coin's, Inc. v. Treasurer of the City of
Worcester, 145, 148, 158
Office of Management and Budget, U.S.,
21,29-30, 33, 107, 109
Office of Program Planning and Fiscal
Management (Washington), 34
Ohio, 5, 29, 31, 67, 81, 86, 97, 117, 179
Oklahoma, 8,81
Oklahoma State Industrial Court, 9
Oregon, 30, 32, 34, 41, 72, 81, 83, 96, 97,
103, 109
Overseer legislature, 68-69
Pennsylvania, 7, 9, 44n, 51, 52, 81, 83, 86,
103, 117, 118-119, 120
Philadelphia Court of Common Pleas,
147
Philadelphia, Pa., 145
Phoenix, Ariz., 123
Pima County, Ariz., 124, 127, 128, 132
209
Political Trials,129n
Politics of the Budgetary Process, The,
40n
Powell, Adam Clayton, 148n
Powell v. McCormack, 148n
Pringle, Edward E., 15, 69-70, 77
Providence, R.I., 9
Puerto Rico, 48
Reeves, Robert N., 36
Report to Governor Patrick J. Lucey, 61
Rhode Island, 15, 29, 31, 33, 34, 43n, 48,
81,83, 97, 103, 110,180-181
Rhode Island Probate Court, 9
Rooney, John, 71
Roosevelt, Theodore, 75
Ryan, Sylvester, 148
San Francisco, Calif., 53n
Santa Cruz County, Ariz., 132
Schick, Allen, 21-22, 157
Senate Appropriations Committee, 72
Separation of powers, 143-161
Smith v. Miller, 144
South Carolina, 8, 81, 84n, 97, 104, 109,
125
South Dakota, 8, 81, 86, 97, 109, 118, 119
Springfield, Mass., 125n, 135, 136n
Standards Relating to Court Organiza-
tion, 121
Submission: central, 16-18; separate, 18
Supreme Court, U.S., 154
Tennessee, 8, 43, 83, 86, 97, 104, 109
Texas, 2, 5, 49, 51n, 52, 81, 84, 104,115
Tucson, Ariz., 123
U.S. Bureau of the Budget. See Office of
Management and Budget, U.S.
U.S. Bureau of the Census, 5
U.S. Federal Reserve Board, 160
U.S. v. Johnson, 153n
Utah, 8, 19, 20n, 81, 84n, 86
Utah Supreme Court, 19-20
Vanderbilt, Arthur T., 155
Vermont, 33n, 40, 48, 66-67, 81, 85, 86,
97, 98, 99, 104, 109
 210
Vermont House Appropriations Com-
mittee, 66
Vile, M.J.C., 150
Virgin Islands, 163n
Virginia, 44n, 51, 86, 97, 104,109
Ward, Robert W., 36
Washington, 30, 34, 35, 41, 81, 110
Washington, D.C., 120, 163n
Washtenaw County, Mich., 124, 130
Watergate, 150n
Wayne County, Mich., 124, 130, 145,
146n, 147, 148
West Virginia, 20n, 30, 32, 48, 51, 61, 67,
68, 74, 80, 81, 83, 84n, 86, 97, 118,
159, 164n.
Wildavsky, Aaron, 40n
Wisconsin, 20, 30, 32, 34, 43n, 44n, 49,
61, 74-75, 76, 81, 96, 97, 99, 107,
109, 119, 159
Wisconsin Citizens Study Committee on
Judicial Organization, 61n
Worcester, Mass., 145, 158
Wyoming, 83
Yavapai County, Ariz., 27
Zolin, Frank, 138-140, 142
 About the Author

Carl Baar received the Ph.D. in political science from the University of
Chieago and was a member of the first graduating class of the Institute for
Court Management's training program in court administration. Baar is now
an Associate Professor in the Department of Politics, Brock University, St.
Catharines, Ontario. He has been a Russell Sage Fellow in Law and Social
Science at Yale Law School and a Visiting Fellow of the Canadian Institute
for the Administration of Justice at Osgoode Hall Law School, York
University. He is currently Editor-i n-Chief of The Justice System Journal.