486 U.S. 429 (1988), 87-5002, McCoy v. Court of appeals of Wisconsin

Docket Nº:No. 87-5002
Citation:486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440, 56 U.S.L.W. 4520
Party Name:McCoy v. Court of appeals of Wisconsin
Case Date:June 06, 1988
Court:United States Supreme Court

Page 429

486 U.S. 429 (1988)

108 S.Ct. 1895, 100 L.Ed.2d 440, 56 U.S.L.W. 4520



Court of appeals of Wisconsin

No. 87-5002

United States Supreme Court

June 6, 1988

Argued January 20, 1988



Under Anders v. California, 386 U.S. 738, if court-appointed appellate counsel wishes to withdraw on the ground that his client's appeal is wholly frivolous, he must include with his withdrawal motion "a brief referring to anything in the record that might arguably support the appeal." A Wisconsin Supreme Court rule essentially restates this requirement, but also requires that the brief include "a discussion of why the issue lacks merit." Believing that his client's state court appeal from felony convictions was frivolous, but being unwilling to include in his withdrawal brief the discussion required by the rule, appellant's court-appointed counsel, after an unsuccessful challenge in the state intermediate appellate court, filed an original action in the State Supreme Court challenging the discussion requirement on the grounds that it is inconsistent with Anders and forces counsel to violate his client's Sixth Amendment rights. The court upheld the requirement.

Held: The discussion requirement -- as construed by the State Supreme Court to require a brief statement of why particular cases, statutes, or facts in the record lead the attorney to believe that the appeal lacks merit -- is constitutional under the Sixth and Fourteenth Amendments. The discussion requirement merely goes one step further than the minimum requirements stated in Anders, and satisfies the same objectives that those requirements serve: assuring the appellate court that the attorney has protected his indigent client's constitutional rights by diligently and thoroughly searching the record for any arguable claim that might support the appeal, and allowing the court to determine whether counsel's frivolousness conclusion is correct. Because counsel may discover previously unrecognized aspects of the law in the process of preparing his or her discussion, the discussion requirement provides an additional safeguard against mistaken frivolousness conclusions. It may forestall some motions to withdraw, and will assist the court in passing on the soundness of counsel's conclusion that the appeal is frivolous. It is settled that an attorney can advise a court that an appeal is frivolous without impairing his or her client's constitutional rights. Explaining the basis for the frivolousness conclusion does not burden the rights to effective representation or to due process on appeal any more than does stating the bald conclusion. The rule does not diminish any right a defendant

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may have under state law to an appeal on the merits, since, once the court is satisfied both that counsel has been diligent and that the appeal is frivolous, federal concerns are satisfied and the case may be disposed of in accordance with state law. Furthermore, the discussion requirement does not diminish the attorney's obligations as an advocate, since his duty to his client is fulfilled once he has conducted a zealous review of the record. Pp. 440-444.

137 Wis.2d 90, 403 N.W.2d 449, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 445. KENNEDY, J., took no part in the consideration or decision of the case.

STEVENS, J., lead opinion

[108 S.Ct. 1898] JUSTICE STEVENS delivered the opinion of the Court.

Like Anders v. California, 386 U.S. 738 (1967), this case concerns the scope of court-appointed appellate counsel's duty to an indigent client after counsel has conscientiously determined that the indigent's appeal is wholly frivolous. In Anders, we held that counsel could not withdraw by simply advising the court of his or her conclusion, but must include with the request to withdraw "a brief referring to anything in the record that might arguably support the appeal." Id. at 744. The Wisconsin Supreme Court has adopted a rule that requires such a brief also to include "a discussion of why the issue lacks merit."1 Appellant challenged the constitutionality

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of the rule in the Wisconsin Supreme Court. Over the dissent of three of its justices, the court upheld the rule, rejecting appellant's contentions that the rule is inconsistent with Anders and that it forces counsel to violate his or her client's Sixth Amendment rights. Wisconsin ex rel. McCoy v. Wisconsin Court of Appeals, 137 Wis.2d 90, 403 N.W.2d 449 (1987). We noted probable jurisdiction, 484 U.S. 813 (1987), and now affirm.


Appellant is indigent. A Wisconsin trial judge found him guilty of abduction and sexual assault and sentenced him to prison for 12 years. He has filed an appeal from that conviction and an attorney has been appointed to represent him. After studying the case, the attorney advised him that further appellate proceedings would be completely useless, and that he had three options: he could voluntarily dismiss the appeal; he could go forward without a lawyer; or he could authorize the attorney to file a brief that would present the strongest arguments the lawyer could make in support of the

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appeal, but would also advise the court of the lawyer's conclusion that the appeal is frivolous. Appellant selected the third option.

Appellant's counsel then prepared a brief that can fairly be characterized as schizophrenic. In his role as an advocate for appellant, counsel stated the facts, advanced four arguments for reversal, and prayed that the conviction be set aside. In his role as an officer of the court, counsel stated that further appellate proceedings on behalf of his client "would be frivolous and without any arguable merit," App. 14, and prayed that he be permitted to withdraw, id. at 27. Thus, in the same document, the lawyer purported to maintain that there were arguments warranting a reversal and also that those arguments were wholly without merit. The brief did not contain an explanation of the reasons for counsel's conclusion. Instead, counsel explained why he believed that it would be [108 S.Ct. 1899] both unethical and contrary to Anders to discuss the reasons why the appeal lacked merit.2 Because the brief did not comply with the discussion requirement in Rule

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809.32(1), the court ordered it stricken and directed counsel to submit a conforming brief within 15 days. App. 30.

Appellant's counsel did not comply with that order. Instead, after unsuccessfully attempting to obtain a ruling on the constitutionality of the rule in the intermediate appellate court, he filed an original action in the Wisconsin Supreme Court seeking to have the discussion requirement in Rule 809.32(1) declared unconstitutional.3 The Supreme Court agreed with portions of appellant's argument, but rejected his ultimate conclusion. The court reaffirmed its acceptance of the principle that appointed counsel have the same obligations as paid counsel to provide their clients with adequate representation,4 and it agreed that the Anders opinion had not sanctioned a discussion requirement.5 Moreover, the court also agreed that it is ultimately the responsibility of the court -- and not of counsel -- to decide whether an appeal is wholly frivolous. It explained, however, that the discussion requirement in the Wisconsin rule assists the court in making that determination:

When the court has before it a reasoned summary of the law militating against further appellate proceedings, it can be assured that the attorney has made an inquiry into the relative merits of the appeal and that the attorney's withdrawal request is valid and grounded in fact and in the law.

137 Wis.2d at 101, 403 N.W.2d at 454. The court noted that, because its procedures for handling frivolous appeals were far removed from the simple statement of counsel's conclusion that this Court condemned in Anders,

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they did not raise the "quality and equality of attorney representation" concerns that underlay our decision in Anders. Id. at 101-102, 403 N.W.2d at 454. The court also pointed out that the rule does not require an attorney to argue against his or her client; rather it merely requires the attorney to fulfill his or her duty to the courts.6 Accordingly, the court upheld the rule.

The dissenting justices expressed the view that the discussion requirement was [108 S.Ct. 1900] not necessary,7 and that it improperly required defense counsel to assume the role of either an amicus curiae, or even an adversary, instead of acting exclusively as an advocate for the client.

In this Court, appellant makes two basic attacks on the rule. He argues that it discriminates against the indigent appellant and that it violates his right to effective representation by an advocate. Both arguments rest largely on the assumption that retained counsel will seldom, if ever, advise an appellate court that he or she has concluded that a client's appeal is meritless, or provide the court with a discussion of the reasons supporting such a conclusion. In determining whether Wisconsin's rule requiring appointed counsel to provide an appellate court with such advice is constitutional, it is appropriate to begin by restating certain propositions established

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by our previous decisions concerning the right to counsel and the obligations of both paid and appointed counsel.


A State's enforcement of its criminal laws must comply with the principles of substantial equality and fair procedure that are embodied in the Fourteenth Amendment. The Sixth Amendment's requirement that "the accused shall enjoy the right to have the...

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