In re Kenneth Bailey, Sr.
No. 07-454
Supreme Court of Vermont
December 24, 2009
2009 VT 122 | 992 A.2d 276
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 61. We note that the situation before us stands in contrast to cases we have remanded to ANR to undertake an appropriate analysis. See In re Stormwater NPDES Petition, 2006 VT 91, ¶¶ 29-30, 180 Vt. 261, 910 A.2d 824. In Stormwater NPDES Petition, we determined that “the Agency erred in summarily denying the petition rather than undertaking the requisite fact-specific analysis under its residual designation authority to determine whether NPDES permits were necessary for the discharges in question.” Id. ¶ 29. Where the requisite analysis was not conducted by ANR in the first instance, it was appropriate to allow ANR the opportunity to undertake that analysis on remand. Id. ¶ 30. In contrast to that situation, here, ANR has conducted the requisite analysis under
Affirmed in part and reversed in part.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Amicus Curiae.
Michael Rose, St. Albans, for Amicus Curiae.
¶ 1. Burgess, J. Attorney Allison Fulcher seeks to withdraw as appointed counsel for petitioner Kenneth Bailey, Sr., in this post-conviction relief (PCR) appeal. As discussed below, we grant her request.
¶ 3. In August 2008, Fulcher moved to withdraw, asserting that she could not continue to represent petitioner in light of Vermont Rule of Professional Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.“) and Rule 3.3 (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), as well as
¶ 5. Fulcher argues that she should be allowed to withdraw without providing the information identified above. She maintains that the considerations underlying Anders are not present here, and that her withdrawal is ethically preferable to filing an affidavit that outlines the shortcomings of her client‘s case. The Office of the Defender General filed an amicus brief, echoing these arguments. It explains that the Legislature expressly limited the right to state-funded legal representation in PCR proceedings to nonfrivolous cases as determined by counsel,
¶ 6. The Court appointed attorney Michael Rose to file an amicus brief opposing the Defender‘s position. He emphasizes that the Court has discretion in ruling on a motion to withdraw, citing Cameron v. Burke, 153 Vt. 565, 573, 572 A.2d 1361, 1365 (1990) (Supreme Court reviews trial court‘s ruling on motion to withdraw
¶ 7. While the Court generally enjoys procedural discretion in considering motions to withdraw under Rule 45.1, we find no basis to require counsel to file an Anders brief to support a request for withdrawal in this case. Such a requirement would defeat the cost-saving purpose of the amendment to
¶ 8. The Public Defender Act (PDA) explicitly governs the “extent of [legal] services” due to indigent PCR litigants, and it expressly conditions a petitioner‘s entitlement to representation on counsel‘s assessment of the merit of the legal action.
To be represented in any other postconviction proceeding which may have more than a minimal effect on the
length or condition of detention where the attorney considers the claims, defenses, and other legal contentions to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
¶ 9. An Anders-type explanation justifying counsel‘s withdrawal is not required in the PCR context. The withdrawal prerequisites called for in Anders are designed to vindicate a defendant‘s constitutional right to counsel, 386 U.S. at 744, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions). Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is “no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.” Id. at 557. ”Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.” Id. at 555; see also People v. Breaman, 939 P.2d 1348, 1351 n.2 (Colo. 1997) (en banc) (citing Finley and concluding that appointed attorney who seeks to withdraw from representing defendant in post-conviction proceeding may inform court that he or she believes defendant‘s claims are without merit and request permission to withdraw without filing Anders brief).
¶ 10. Rather than being grounded in the constitution, petitioner‘s right to counsel is created, defined, and limited by statute. See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled). Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding “that . . . the needy person considers appropriate.”
¶ 12. It follows that when counsel avers to this Court that the “claims, defenses, and other legal contentions” presented in a PCR are not “warranted by existing law or nonfrivolous argument,” counsel may withdraw, and the state‘s obligation to petitioner is fulfilled, under the statute. Counsel‘s representation to the court that he or she cannot ethically advocate her client‘s position, particularly when confirmed by the Defender‘s review, satisfies the statute. This approach implements
¶ 13. We presume that an attorney acts diligently in assessing a petitioner‘s claims, and that, as an officer of the court, he or she is not misrepresenting the situation. See V.R.Pr.C. 3.3(a)(1); see also id. cmt., Rule 3.3(a)(1) (explaining that assertion purporting to be based on lawyer‘s own knowledge, as in affidavit by lawyer or in a statement in open court, may properly be made
¶ 14. This is not to suggest that lawyers are infallible. In the relatively few instances where the Defender withdraws, however, petitioners can continue with their litigation, albeit pro se, and may still prevail in the remedy sought if, in the court‘s view, the claim is ultimately established. Moreover, if it appears to the trial court during pretrial proceedings that there may be substance and merit to a petition, the court may reappoint counsel to reevaluate the case accordingly.
¶ 15. There is no constitutional or statutory right to insist that counsel elaborate on their motions to withdraw, and it would undermine the intent of
¶ 16. We thus hold that Attorney Fulcher is not required to file an Anders-like affidavit before being allowed to withdraw. Her representation that she cannot continue to represent petitioner under the ethical rules and in light of
¶ 17. Neither dissenting opinion is persuasive. Both treat this case as if petitioner had a constitutional right to counsel in PCR proceedings, rather than a limited statutory right. Both ignore the plain terms of
¶ 18. Further, both dissents are erroneously premised on the formality of counsel being “assigned” by this Court. This Court‘s “assignment” of counsel is based solely on whether a petitioner has demonstrated that he or she is a “financially needy” person. As previously discussed, a “needy person,” by statute, has the right to be represented by an attorney in a PCR proceeding only in cases that the attorney decides are nonfrivolous. Pursuant to an administrative order, the Court notifies the public defender “[i]n all cases where the right of a needy person to be represented by counsel exists, and is not waived,” and the Court appoints counsel if “the public defender is unable, due to a conflict of interest or otherwise, to represent the person in question,” among other circumstances. A.O. 4, § 3. Taken literally, no assignment should occur until the needy person has established his or her statutory right to counsel. Presumably, such assignment would follow the Defender‘s review process and a determination by counsel that the case is not frivolous.
¶ 19. Relying on this administrative order, however, Justice Johnson advocates an approach that would create a Catch-22 for
¶ 20. The concern that we are abdicating some obligation owed to PCR litigants is unfounded. It is not for this Court to “approve” the attorney‘s decision whether to represent his or her client, and there is no “rubber-stamping” involved. Cf. post, ¶¶ 24, 41. The attorney does not need this Court‘s permission to determine whether to represent his or her client, and the statute does not require us to review the substance of counsel‘s decision. A ruling on the motion to withdraw does not require us to inquire as to the merits of the case at all. It simply recognizes that the Legislature has left it to the attorney to decide which PCR cases to pursue, not this Court. This Court will conduct an independent review of the merits of the case when it is heard.3
¶ 21. This approach serves the purpose of the newly-amended statute and conserves scarce Defender resources. As one court has noted in addressing a similar issue:
It is not inappropriate to observe that in many places of the State offices of the public defender are now overburdened and struggle to fulfill their statutory obligations to provide representation for the indigent. This condition . . . explains in part the unwillingness of those given the important responsibilities of public defenders to assume obligations beyond what the Public Defender Act imposes.
Maloney, 498 N.E.2d at 1104-05.
¶ 22. This Court abdicates no responsibility because no such responsibility is assigned. As we have previously recognized,
¶ 23. The language of the statute at issue in this case is clear, as is the legislative intent underlying this provision. There is no obligation or any inherent need to impose the additional burdens on counsel advanced by the dissenting opinions.
Attorney Fulcher‘s motion to withdraw is granted. No new counsel will be appointed. Appellant shall file his brief and printed case within thirty days of the date of this order.
¶ 24. Dooley, J., dissenting. The majority has endorsed a procedure under which the Defender General determines the merits of petitioner‘s case, through a secret process undisclosed to petitioner or this Court, and we rubber stamp the result to deny petitioner any counsel for his appeal and effectively dismiss the appeal. This is done, we are told, to protect petitioner from the “sandbagging” of his appeal by appellate counsel, as if this process was created to help the client. Ante, ¶ 12. In fact, the hallmark of this process is prejudice to the client, with this Court intentionally ignoring that prejudice. In my view, the process compromises our role to ensure proper treatment of litigants. Neither the Public Defender Act, nor the United States Constitution, nor this Court‘s inherent power permits appointed counsel unilaterally to withdraw from representation of a needy person without an independent judicial review to ensure that the person‘s interests have been adequately represented. What the majority dismisses as “second-guessing by courts,” ante, ¶ 11, constitutes, in fact, the minimal process to which every individual, regardless of wealth, is entitled. Accordingly, I respectfully dissent.
¶ 26. The docket clerk determined the record was complete on April 10. On April 29, the parties filed a stipulation to extend the time for appellant‘s brief to June 9, explaining that the extension was necessary “in view of the Assigned Appellate Contractor‘s caseload, to permit an adequate presentation of appellant‘s case.” On June 6, counsel filed a motion for another extension until August 8, saying that “the time requested is necessary as counsel is unable to complete the brief by the current deadline consistent with the appellant‘s right to effective assistance of counsel on appeal.”
¶ 27. On August 6, some seven months after appointment, counsel filed the motion to withdraw that led to this decision, asserting that “pursuant to Rules 3.1 and 3.3 of the Vermont Rules of Professional Conduct and under
¶ 28. In response to the order requiring counsel to explain the grounds for her action, counsel filed a motion for full-court review, stating for the first time that “two separate attorneys have scrutinized the case and found the claims to be without merit.” Counsel never stated that she had found the appeal to be frivolous, apparently believing that it was improper for her to state directly that she believes that petitioner‘s case is frivolous or any other words to that effect. In a separate brief as amicus curiae, the Defender General has explained that three lawyers looked at the case. While none of the briefs say so explicitly, the decision here is actually a decision of the Defender General that he will not pay for representation by Attorney Fulcher or anyone else once the review process was completed. This is, then, a decision about a system and not about particular counsel.
¶ 29. I emphasize the latter point to directly dispute the majority‘s characterization of the issue as much narrower — “we are not asked to decide if Attorney Fulcher waived her right to withdraw, nor are we asked to evaluate the validity of the Defender‘s screening process.” Ante, ¶ 17. I disagree with both characterizations. As to the waiver point, the majority has granted Attorney Fulcher‘s motion to withdraw, ante, ¶ 16 (“her motion to withdraw is granted“), and, in my judgment, her failure to raise the issue of withdrawal in a timely fashion should prevent grant of that motion. The timeliness of an attorney‘s actions is always in issue. The whole point of court oversight of withdrawal is to ensure that the interests of the client are protected. Even if I agreed that she can withdraw solely by sending a letter, I would not grant the motion to withdraw in this case.
¶ 30. The majority offers two justifications for its nonwaiver ruling: no party raises the timeliness of the request and no demonstrable prejudice has occurred. I address below why there is demonstrable prejudice. As to the former point, the only “party” who has any interest in raising the question is the client who will be left without a lawyer. Petitioner first agreed to
¶ 31. I think the second characterization simply ignores what the record shows has occurred here and is occurring in all these cases. More important, the majority relies on the Defender General‘s review process in a number of places in its opinion. Since the review process is essential to the majority decision, we should look at its validity.
¶ 32. I also take as fact something my colleagues may not, but I think is critical to the issue before us. The decision on the withdrawal motion is de facto a decision on the merits of the appeal unless something with the likelihood of a lightning strike occurs. Petitioner has tried to make his argument pro se, but it is hard to comprehend from his statements. For example, in his “brief” to this Court in seeking new counsel, he summarizes his argument why a sentence of three to eighteen years, all suspended except three to six years, is unlawful: “The unsuspended portion of a split to serve sentence becomes the minimum sentence to serve, thus there is no minimum provided for, only a six year sentence or minimum and not a 3-6 as shown.” Even in a case like this where the appellee, the State of Vermont, has not filed anything in the superior court or in this Court defending on the merits, there is no serious chance that petitioner will prevail on the merits given his inability to advocate his position. I find all the arguments from the Defender General and appellate counsel about not wanting to undercut petitioner‘s appeal to be self-serving and theoretical. The fact is that the only real chance petitioner would have on appeal would occur if we reviewed the grounds for withdrawal, found them inadequate, and required briefing on issues we found not to be frivolous — exactly the review the Defender General opposes. As a recent commentator recognized in reviewing the use of Anders procedures, “[j]urisdic-
¶ 33. As near as I can determine, the substantive issue in this case is whether petitioner is entitled to appear before the parole board after the expiration of three years from his sentencing or after six years from his sentencing. He was sentenced in May 2004, and five years have already expired since sentence was imposed. If one assumed that petitioner prevailed in his PCR proceeding and was immediately released by the parole board, all of the time following the appointment of appellate counsel represents additional time that petitioner has remained in jail. Despite this potential increased incarceration time, appellate counsel never objected to her appointment, never stated that it was conditional on an independent review, never disclosed that the review was going forward and would have to be completed before she could provide any representation, and twice stated to us that any delay was caused by having too many cases to complete the brief within the time limits. The majority says that in this case there is no “demonstrable prejudice” from the delay in filing the motion to dismiss, ante, ¶ 17 n.2, despite the fact that the ultimate question on appeal is whether petitioner should now have an opportunity for release from jail. The majority can make that statement only if it assumes that the appeal is frivolous, judging the merits without presentation of briefing and argument in order to decide whether petitioner can have a lawyer to file a brief and make an argument on his behalf. On that theory, counsel can wait until the case is moot, totally eliminating petitioner‘s opportunity to present a case, and the Court will find no prejudice to the client. I find it unconscionable that this Court would rubber-stamp a system that causes this kind of prejudice to a client, who would be much better off if there were no right to counsel in any circumstances and presented his case, however poorly, in time for a meaningful result.
¶ 34. The above is background, but colors my view of how we should decide the issues before us. It should come as no surprise,
¶ 35. This case involves the interplay between our withdrawal rule,
¶ 36. Without saying so directly, the majority seems to argue that the withdrawal rule does not apply because no attorney was actually appointed in this case. Thus, the majority states that “such assignment would follow the Defender‘s review process and a determination by counsel that the case is not frivolous.” Ante, ¶ 18. This statement is directly contrary to the superior court‘s appointment order in this case. Pursuant to that order, assignment occurred on December 8, 2007, and not when the secret review process occurred, whenever that was. Indeed, under the majority‘s theory, counsel never had to move to withdraw because she was never assigned to represent petitioner. The majority‘s
¶ 37. The majority also holds that the withdrawal rule is inconsistent with the governing statute, that provides that a needy person has the right:
To be represented in any other postconviction proceeding which may have more than a minimal effect on the length or conditions of detention where the attorney considers the claims, defenses, and other legal contentions to be warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
¶ 38. Nothing in the amendment or its underlying history, however, reveals a legislative intent to evade the venerable — and indispensable — rule requiring judicial review and approval before counsel may withdraw his or her services in a case pending in the court. As courts have long observed, the rule is grounded in concerns for ensuring the efficient administration of justice as well as the effective representation of litigants. As explained by one court, “the inherent power of the trial court to control its calendar and conduct its business in the public interest is nowhere more apparent than when counsel — whether retained or appointed — seeks to withdraw from representation of a defendant.” State v. Batista, 492 N.W.2d 354, 358 (Wis. Ct. App. 1992). “It is a cardinal rule,” the same court continued, “that once representation is undertaken, counsel cannot walk away from the defendant or from the case. If counsel wishes to be released from responsibility to
¶ 39. As noted, nothing in the language or the legislative history of the amendment to
¶ 40. Thus, apart from removing an indigent‘s right to demand representation regardless of the appointed attorney‘s judgment that the petition is frivolous, the language and history of the amendment reveal no underlying legislative intent to alter the current system for the withdrawal of counsel. Certainly there is no evidence of an unstated intention to overturn a discretionary authority that courts have long exercised in the interest of ensuring the effective representation of litigants and the efficient administration of justice.
¶ 41. Although, as the majority indicates, some states have adopted statutes similar to
¶ 42. Two precedents from courts in states with a similar statute are instructive. The first, People v. Demarest, 801 P.2d 6 (Colo. App. 1990), is from a jurisdiction cited in the majority opinion and is essentially the same as the case before us. In Demarest, a public defender moved to withdraw from an appeal of a denial of a PCR petition under a statute that conditioned the right of representation on the lawyer being “satisfied first that there is arguable merit to the proceeding.” Id. at 7. The lawyer argued that she was not “satisfied” that the case had arguable merit. The court noted it had discretion in addressing the motion and that “counsel who undertakes to conduct an action impliedly stipulates that he will prosecute it to a conclusion.” Id. The court reasoned and held:
There is no indication that counsel objected to the trial court‘s order of March 16, 1989, appointing counsel on
Id. At a minimum, we should follow Demarest and deny counsel‘s motion to withdraw for the reasons stated in that decision. By the representations in her motions to this Court and her inaction over an extended period of time, counsel has waived any right she had to abandon representation of petitioner.
¶ 43. The second case, Griffin v. State, 18 P.3d 71 (Alaska Ct. App. 2001), suggests a further answer to the real issue here — that is, the validity of a process under which lawyers, and the public defender system, withdraw based on their unreviewable evaluation of the merits of the client‘s case. Alaska adopted a statute similar to that in Vermont for screening of PCR proceedings. Like the Vermont statute, the Alaska statute purports to condition representation on an unreviewable, subjective evaluation of merit by the assigned counsel. Recognizing that the judge in the PCR proceeding ultimately has to determine the merit of the petition, the court added a nonstatutory requirement that the lawyer explain why the petition lacked merit such that the lawyer could withdraw. Id. at 77. The court explained the rationale for its decision as follows:
In order for the court to perform its role under Rule 35.1(f)(2) — and thereby fulfill its duty to make sure that indigent litigants do in fact receive zealous investigation and presentation of any colorable claims for post-conviction relief — the attorney seeking to withdraw from the case must provide the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous. Only then can the court meaningfully assess and independently evaluate the attorney‘s assertion that the petitioner has no arguable claim to raise.
Id. In later discussion, the court added that it acted, in part, “to avoid the constitutional problems that would arise if we interpreted [the statute] narrowly.” Id. In order to enforce Appellate
¶ 44. If this were a decision solely about the withdrawal of one lawyer, I would end here. But, as I state above, the argument and briefing disclose that the issue is really about whether petitioner has a publicly-funded right to counsel in this case. I repeat that this determination is made by the Defender General in a secret, unreviewable process with only the result, if it is adverse, disclosed to this Court and to the client.
¶ 45. The Defender General has given a number of justifications for responding summarily to this Court, but none for responding in this way to petitioner. In fact, the assigned lawyer and the Defender General could fully disclose their review of the merit of petitioner‘s case to petitioner, without disclosing this information publicly or to this Court. This would give petitioner an opportunity to contest the decision and seek review in this Court under Rule 45.1(f), with the necessary disclosure that if petitioner desires effective review the information would be released to this Court. Under such a procedure, it would be the client, not the lawyer, who would decide what is in the best interest of the client — exactly where the responsibility should be placed.
¶ 46. I do not think that the current secret, unreviewable process is consistent with due process of law under the
¶ 48. Johnson, J., dissenting. To provide petitioner with competent and effective assistance of counsel and to preserve this Court‘s role as protector of his right to counsel, this Court should deny counsel‘s motion to withdraw and require her to file a brief on petitioner‘s behalf. Neither the majority‘s solution of rubber-stamping the attorney‘s conclusion that the case lacks merit, nor Justice Dooley‘s suggestion to require an Anders-type affidavit from counsel adequately resolves the conflict between indigent petitioner‘s need for effective and zealous representation and counsel‘s own professional obligation to refrain from bringing frivolous cases. While I concur with the majority‘s conclusion that an Anders-like procedure is not constitutionally required or particularly effective in protecting an indigent litigant‘s rights, I cannot agree with the majority‘s holding that assigned counsel may withdraw at any point in the course of representation based solely on counsel‘s own, unreviewable conclusion that the case is not warranted by existing law or nonfrivolous argument. The grave consequences of a post-conviction proceeding and the critical requirement of robust representation at this proceeding require more. To solve this problem, I would instead require counsel, once appointed, to remain in the case and to advance her client‘s claims notwithstanding that she deems them to be without merit. Because I would deny counsel‘s motion to withdraw, I dissent.
¶ 49. I begin by outlining the process of assigning counsel to indigent persons, which involves provisions of both the Public Defender Act (PDA) and our own administrative rules. The PDA entitles a “needy person” to counsel in a post-conviction relief (PCR) proceeding “which may have more than a minimal effect on the length or conditions of detention.”
¶ 50. The question of what types of PCR petitions merit counsel arose in In re Gould, 2004 VT 46, 177 Vt. 7, 852 A.2d 632, where
¶ 51. The majority construes the amended language of
¶ 53. The majority fails to explain how its decision can be reconciled with this Court‘s responsibility for, and discretion in, evaluating motions to withdraw. The majority prefers to treat this case as one involving appointment rather than withdrawal because it contends that in that context the attorney has full discretion. To do so, the majority concludes that petitioner‘s attorney was involved based wholly on a “pro forma referral.” Ante, ¶ 7. Therefore, the majority concludes that there was no real assignment of counsel, id. ¶ 18, and counsel does not require “this Court‘s permission to determine whether to represent his or her client.” id. ¶ 20. The majority‘s assumption ignores the bare facts. However ministerial, it is undisputed that counsel was assigned to petitioner by the court; to withdraw, counsel must request permission from this Court. If there is indeed some “Catch-22,” ante, ¶ 19, created by the current system, it is up to the Legislature to redesign the appointment process, rather than for this Court to legislate a change that it infers should exist. Moreover, in this case, it trivializes counsel‘s involvement in petitioner‘s case to say that her representation was wholly a formality. Counsel represented petitioner for eight months, filed documents on his behalf and requested extensions of time for preparation of his case. Under these circumstances, I conclude that her representation
¶ 54. The Defender General asserts in its brief that the merit of a case is determined by an internal screening process involving separate review by three attorneys. This information is supposed to reassure this Court that the attorney‘s withdrawal is warranted. It does not, however, alleviate my concerns. Whatever the process the Defender General has designed for screening cases, it is not the court‘s process, and it is hidden from our view. If we are to certify an attorney‘s withdrawal, then we must independently evaluate the reasons for the withdrawal because, in essence, allowing counsel to withdraw is a predetermination by this Court that petitioner‘s case is frivolous. While there may be strong policy reasons for limiting the right to counsel in PCR proceedings, the statute does not answer the question of when and how an appointed attorney may withdraw because she deems the claims frivolous. I express no opinion on Justice Dooley‘s contention that the Defender General‘s “secret, unreviewable process” for screening cases is not consistent with due process of law under the
¶ 55. Thus, the question remains of how to evaluate counsel‘s request to withdraw. Justice Dooley contends that the best option is to require counsel to file an affidavit specifying petitioner‘s claims, outlining the supporting law, and affirming that the claims are without merit, modeled upon the requirements set out by the Supreme Court of the United States in Anders v. California, 386 U.S. 738 (1967). I understand the laudable goals behind this process, but conclude that it is administratively difficult, places the court in an advocacy rather than judicial role and undermines the attorney-client relationship. See Gale v. United States, 429 A.2d 177, 183 (D.C. 1981) (Ferren, J., dissenting) (“Motions to withdraw under Anders . . . are agonizing for the lawyer, awkward for the judge, and perceived as collusive by the appellant.“).
¶ 57. Second, Anders places counsel and the courts in unsuited roles. When counsel briefs a case against his client, it requires the courts to assume an adversarial rather than judicial role by inquiring as to whether the record supports any credible arguments. See Moffett, 418 N.E.2d at 590-91. In evaluating an Anders brief, the court must independently examine the record to determine if any claims exist that are nonfrivolous. This role reversal thus “forces either the court to undertake the role of the lawyer, or the lawyer to undertake the role of the court,” and “does not well serve the administration of justice.” Gale, 429 A.2d at 182 (Ferren, J., dissenting). Allowing a petitioner‘s claims to be evaluated outside of the adversarial process also compromises a litigant‘s rights. See Gould, 2004 VT 46, ¶ 21 (explaining that justice is best served through the adversarial process).
¶ 58. Third, the attorney-client relationship is compromised because defense attorneys are required to brief the case against their clients. Thus, petitioners are “sandbagged when the counsel appointed by one arm of the Government seems to be helping
¶ 59. In PCR proceedings, Anders is even more burdensome to courts than in direct appeals. In a PCR proceeding, it can be very onerous to search the record for error because the record is by definition boundless. It “includes trial counsel‘s notes, police reports, witness interviews, and miscellaneous materials which may be voluminous in quantity and virtually unintelligible in form.” Hertz v. State, 755 P.2d 406, 408-09 (Alaska Ct. App. 1988), superseded by rule as stated in Griffin v. State, 18 P.3d 71, 72 (Alaska Ct. App. 2001). While the record in an appeal is a finite set of facts, in PCR proceedings claims of error are generally supported by facts outside the trial court record and may require a diligent attorney to review “documents from police files, interview or depose witnesses, and fully interview the petitioner.” Griffin, 18 P.3d at 74. If an attorney asserts that no nonfrivolous issues exist, then the court faces the “arduous task” of reviewing this claim by searching through these items on its own. Id. This process requires the court to assume an “inquisitorial role” more akin to advocate than to the court‘s proper adjudicative function. Id.
¶ 60. In addition, the Anders procedure closely resembles our traditional way of resolving PCR petitions and therefore has little extra time savings. In a normal PCR proceeding, the petitioner submits a motion outlining errors in his conviction and sentence, and the trial court reviews the brief and may dismiss the petition if it lacks merit.
¶ 61. To avoid these problems, I propose an alternative solution. Once an attorney is assigned to represent a petitioner in an initial PCR proceeding, I would not entertain any motion to withdraw
¶ 62. The ABA Standards for defense counsel on appeal also recommend that appellate counsel should not seek to withdraw from a case based solely on her determination that the appeal lacks merit. See ABA Standards for Criminal Justice, Defense Function Standard 4-8.3 (3d ed. 1993). The Standards advise counsel to carefully reflect on whether an appeal is frivolous because “[i]n some instances, even when the existing doctrine does not support a case for reversal on appeal, there may be a sound basis for arguing for an extension, modification, or reversal of exiting law. In such a case, the appeal ground is not frivolous.” Id. cmt. The Standards explain that it is inappropriate for counsel to submit an Anders-type brief because counsel is forced to act as an adviser to the court. Instead, counsel should prosecute the appeal as best as she can without deceiving or misleading the court. Id.
¶ 63. This process is utilized in New Jersey for PCR proceedings, where the post-conviction rule states: “Assigned counsel may not seek to withdraw on the ground of lack of merit of the petition. Counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit.” New Jersey Rules of Court, Rule 3:22-6(d). The New Jersey Supreme Court has explained that in these cases an attorney must communicate with her client and then “fashion the most effective arguments possible.” State v. Rue, 811 A.2d 425, 437 (N.J. 2002) (quotation omitted). The attorney must “advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them,” but is not required to “engage in expository argument” and may stand on the brief. Id. at 437. In this posture, counsel is not required to fabricate evidence or claims, but must file a brief that argues the
¶ 64. While this Court has not addressed the question directly, as a practical matter, we do not entertain Anders motions to withdraw in direct appeals. See M. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection is more Equal than Others’, 23 Fla. St. U. L. Rev. 625, 651 n.212 (1996) (noting that Vermont is one of several states that have not used Anders motions in direct appeals). In all cases, counsel submits a brief presenting the client‘s claims as best as counsel is able, and we evaluate the merit of those claims. There is no practical reason why we should treat PCR proceedings differently from direct appeals in deciding whether to require an Anders brief. Frivolous claims are just as likely to appear in appeals from a conviction as in appeals from a PCR proceeding.
¶ 65. Adopting this procedure would have several advantages. It would eliminate the need for this Court to blindly certify an attorney‘s withdrawal without independently examining the merits of the petitioner‘s case. It would also eliminate the Anders-associated problems. There would be no need for counsel to delineate the shortcomings of her client‘s case. Moreover, instead of independently evaluating the merits of a petition based on counsel‘s affidavit, the court would have the benefit of considering the merits of the petition through the adversarial process. This would better serve the client and the court. See Cigic, 639 A.2d at 253-54 (explaining that prohibiting withdrawal preserves the integrity of the attorney-client relationship and allows the appellate court to directly review merits of case); see Warner, supra, at 666 (“By refusing to allow counsel to withdraw, appellate courts are better served because they will receive a brief on the merits, regardless of the issues.“).
¶ 66. As amicus, the Defender General argues that it is necessary to allow attorneys to withdraw in frivolous cases to save its limited resources for cases with merit. I recognize that requiring attorneys to continue representation does not provide the resource savings that the Defender General seeks. As explained above, however, I cannot simply allow withdrawal without some judicial oversight of the decision. Moreover, I submit that once an
¶ 67. Finally, I briefly address the Defender General‘s concern about placing counsel in an ethical dilemma. Counsel is obligated under the Rules of Professional Conduct to “not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”
¶ 68. To begin, I emphasize that the actual chance that an attorney will be forced to bring an appeal based on a truly frivolous claim is extremely rare. As other courts have stressed, the standard of frivolousness is a high one. See, e.g., Cigic, 639 A.2d at 253 (defining when an action is frivolous). “There is a significant difference between making a weak argument with little
¶ 69. Furthermore, to protect an attorney in the extraordinary situation where she is forced to bring a frivolous claim, this Court could create an exception to the professional conduct rule under its authority over attorney discipline.
¶ 70. This exception would not undermine the purposes behind the rule on bringing frivolous claims, which are to prevent harassment of the opposition and to avoid wasting judicial resources. J. Duggan & A. Moeller, Make Way for the ABA: Smith v. Robbins Clears a Path for Anders Alternatives, 3 J. App. Prac. & Process 65, 101 (2001).
The opposition — the state or federal government — incurs additional expense by being required to respond to a frivolous argument, but this hardly rises to the level of the harassment the ethical rule targets. In addition, the court‘s resources are not being abused because, one way or another, the court will have to review the issues.
Id. Ultimately, I believe that it is more important to preserve an indigent‘s right to effective counsel than to avoid having counsel
¶ 71. In summary, I disagree with the majority‘s decision to grant counsel‘s motion to withdraw based solely on her assertion that the petition is without merit and, thus, to leave petitioner without counsel to advance his PCR claims. Instead, I would deny the motion to withdraw and require counsel to file a brief on her client‘s behalf.
2009 VT 98
In re Eastview at Middlebury, Inc.
(Miriam Roemischer, Appellant)
[992 A.2d 1014]
No. 08-166
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
Opinion Filed October 1, 2009
Motion to Amend Granted January 15, 2010