Gloria PULLEN, Petitioner, v. STATE of Florida, Respondent.
No. SC00-1482.
Supreme Court of Florida.
September 13, 2001.
Rehearing Denied November 15, 2001.
802 So. 2d 1113
HARDING, J.
Robert A. Butterworth, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, FL, for Respondent.
Julianne M. Holt, Public Defender, and Marcia Perlin, Assistant Public Defender, Thirteenth Judicial Circuit, Tampa, FL, for Florida Public Defender Association, Inc., Amicus Curiae.
HARDING, J.
We have for review a decision of a district court of appeal that affects a class of state or constitutional officers. We have jurisdiction. See
Gloria Pullen appealed an order from the Division of Administrative Hearings authorizing her continued involuntary civil commitment under Florida‘s Baker Act. See
The district court concluded that because Anders procedures are grounded in the Sixth Amendment right to counsel in criminal prosecutions while Baker Act proceedings are civil in nature and the right to counsel in such proceedings arises from the due process clause, Anders is inapplicable to appeals from involuntary civil commitment orders. The First District Court noted that the Fourth District Court had reached the same conclusion as to the inapplicability of Anders procedures in termination of parental rights (TPR) proceedings. See Ostrum v. Dep‘t of Health & Rehabilitative Servs., 663 So. 2d 1359 (Fla. 4th DCA 1995). The First District Court adopted the procedures outlined in Ostrum, i.e., where counsel conducts a conscientious review of the record and can find no meritorious grounds on which to appeal, counsel can move to withdraw on that basis and the court will give the pro se appellant an opportunity to file a brief; where the pro se appellant fails to do so, the case will be dismissed for failure to prosecute. See Pullen, 764 So. 2d at 705.
Pullen sought review by this Court on two grounds: (1) the decision below expressly construes the due process and right to counsel provisions of the Florida and United States Constitutions; and (2) the decision expressly affects all public defenders who routinely represent indigent patients in Baker Act proceedings. See
In Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the United States Supreme Court addressed the duty of a court-appointed appellate counsel to prosecute a first appeal when the attorney has conscientiously determined that there is no merit to the indigent‘s appeal. The Supreme Court held that the procedure in such circumstances must ensure that the indigent defendant is furnished with counsel acting in the role of an advocate and that the appeal will be given the full consideration and resolution of the matter as is received when counsel is acting in that capacity. See id. at 743, 87 S. Ct. 1396. The Supreme Court concluded that a no-merit letter from counsel to the court does not suffice. Instead, the Supreme Court outlined the following procedure for appointed counsel to follow: if, after a conscientious examination of the case, counsel concludes that the case is wholly frivolous, counsel may request permission to withdraw; however, that request must be accompanied by a brief referring to anything in the record that might arguably support the appeal and a copy of the brief should be furnished to the indigent defendant to permit him or her to raise any points he chooses; the court then makes a full examination of the proceedings to determine whether the case is wholly frivolous; if so, it may grant counsel permission to withdraw and either dismiss the case or proceed to a decision on the merits; if the appeal is not found frivolous, the court must provide the indigent with counsel to argue the appeal. See id. at 744, 87 S. Ct. 1396; see also In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (explaining Anders procedure); State v. Wooden, 246 So. 2d 755, 757-58 (Fla.1971) (stating that court-appointed counsel must follow Anders procedure in order to withdraw from direct appeal which he believes to be without merit).
In a recent opinion, the Supreme Court explained that the procedure outlined in Anders is not mandatory upon the states. See Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (holding that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals). The Supreme Court explained that states may craft variations of the Anders procedure “so long as it reasonably ensures that an indigent‘s appeal will be resolved in a way that is related to the merit of that appeal.” Id. at 276-77, 120 S. Ct. 746. In Robbins, the Supreme Court concluded that California‘s Wende2 procedure,
Thus, while the Supreme Court will permit variations on Anders in the criminal context, the procedures still must protect the defendant‘s right to appellate counsel. In a criminal context, a “no-merit” letter and withdrawal, such as the procedure used in the instant case, would clearly not be sufficient. See id.
Thus, the real issue here is what procedure is required in the context of a civil appeal. The process to which an individual is entitled “depends on the extent to which [the] individual will be ‘condemned to suffer grievous loss.’ The question is not merely the ‘weight’ of the individual‘s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (addressing the applicability of due process to parole revocation proceedings).
Clearly, an individual who faces involuntary commitment to a mental health facility has a liberty interest at stake. Accordingly, this Court has held that “[t]he subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. By significant stages we mean all judicial proceedings and any other official proceeding at which a decision is, or can be, made which may result in a detrimental change to the conditions of the subject‘s liberty.” In re Beverly, 342 So. 2d 481, 489 (Fla. 1977) (citation omitted); accord Jones v. State, 611 So. 2d 577, 579 (Fla. 1st DCA 1992).
In reaching the decision in the instant case, the district court relied upon the decision of the Fourth District Court in Ostrum, which involved an appeal following the termination of parental rights. See 663 So. 2d at 1360. After Ostrum‘s attorney filed a motion to withdraw accompanied by an Anders brief, the Department of Health and Rehabilitative Services filed a motion to dismiss the appeal based upon the Anders brief and the court‘s policy of expeditiously resolving cases involving the interests of children. See id. at 1361. The Fourth District Court granted the attorney‘s motion to withdraw and summarily affirmed the termination of parental rights order. See id. at 1361-62. The district court explained that the Anders procedures do not apply to appeals from termination
Citing the first reason in Ostrum, the district court in the instant case concluded that Anders is not applicable to Baker Act appeals because they are not criminal in nature and the right of counsel in such proceedings is derived from the constitutional right to due process rather than the Sixth Amendment right to counsel protected by Anders. See Pullen, 764 So. 2d at 705. The district court adopted the Ostrum procedure in appeals from involuntary civil commitments under the Baker Act. See id. Thus, under the procedure adopted by the Pullen court, counsel may move to withdraw on the basis that he or she has conducted a conscientious review of the record and found no meritorious grounds on which to appeal; the appellate court need not conduct an independent review of the record; and the appellant will be given an opportunity to file a pro se brief. See id.
While Anders involved an indigent criminal defendant, the United States Supreme Court expressed an overriding concern for “substantial equality and fair process” in the appellate process. Anders, 386 U.S. at 744, 87 S. Ct. 1396. The Supreme Court noted that a long line of cases have addressed “discrimination against the indigent defendant on his first appeal” and concluded that “equal justice was not afforded an indigent appellant where the nature of the review ‘depends on the amount of money he has.‘” Id. at 741, 87 S. Ct. 1396. Additionally, as the Supreme Court explained in Robbins, the line of cases dealing with an indigent‘s right to appellate counsel derive support from both the equal protection and due process clauses, which “as a practical matter, . . . largely converge to require that a State‘s procedure ‘afford adequate and effective appellate review to indigent defendants. A State‘s procedure provides such review so long as it reasonably ensures that an indigent‘s appeal will be resolved in a way that is related to the merit of that appeal.‘” Robbins, 528 U.S. at 276-77, 120 S. Ct. 746 (citation omitted). Furthermore, in civil proceedings where the “individual interests at stake . . . are both ‘particularly important’ and ‘more substantial than mere loss of money,‘” due process places a higher burden on the state. Santosky v. Kramer, 455 U.S. 745, 756, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (termination of parental rights); see also Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (involuntary commitment); Woodby v. INS, 385 U.S. 276, 87 S. Ct. 483, 17 L. Ed. 2d 362 (1966) (deportation); Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796 (1943) (denaturalization). As this Court has explained, “[t]he deprivation of liberty which results from confinement under a state‘s involuntary commitment law has been termed a ‘massive curtailment of liberty.‘” Shuman v. State, 358 So. 2d 1333, 1335 (Fla.1978) (quoting Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972)). “Those whom the state seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are
The United States Supreme Court has not addressed the applicability of Anders to those civil proceedings in which a state has determined that an indigent party is entitled to appointed appellate counsel. While the federal Constitution does not require the states to create appellate review, see Robbins, 528 U.S. at 270 n. 5, 120 S. Ct. 746, constitutional constraints are imposed on the state when it chooses to do so. See id. at 270, 120 S. Ct. 746. Neither this Court nor the United States Supreme Court has addressed the applicability of the Anders procedures to civil proceedings such as these, i.e., where the “individual interests at stake . . . are both ‘particularly important’ and ‘more substantial than mere loss of money.‘” Santosky v. Kramer, 455 U.S. at 756, 102 S. Ct. 1388. In Florida, several district courts have addressed this issue and concluded that Anders does not apply to appeals in various proceedings where the right to counsel arises from the due process clause. See, e.g., Ostrum v. Dep‘t of Health & Rehabilitative Servs., 663 So. 2d 1359 (Fla. 4th DCA 1995) (termination of parental rights); Jimenez v. Dep‘t of Health & Rehabilitative Servs., 669 So. 2d 340 (Fla. 3d DCA 1996) (same); In re J.A., 693 So. 2d 723 (Fla. 5th DCA 1997) (same); In re K.W., 779 So. 2d 292 (Fla. 2d DCA 1998) (same); Gantt v. State, 714 So. 2d 1116 (Fla. 4th DCA 1998) (noncapital postconviction proceeding where court exercised discretion to appoint public defender); Pullen v. State, 764 So. 2d 704 (Fla. 1st DCA 2000) (involuntary civil commitment).
Other states that have addressed the application of Anders to civil proceedings have come to varying conclusions. Some have held that Anders is applicable to termination of parental rights or similar proceedings. See J.K. v. Lee County Dep‘t of Human Res., 668 So. 2d 813 (Ala. Civ. App. 1995) (juvenile dependency proceeding); In re Keller, 138 Ill. App. 3d 746, 93 Ill. Dec. 190, 486 N.E.2d 291 (1985); In re Christopher B., No. L99-1065, 2000 WL 281739 (Ohio Ct. App. Mar. 17, 2000); In re D.C. & L.C., 963 P.2d 761 (Utah Ct. App.1998). Others have not applied Anders to such proceedings. See Denise H. v. Arizona Dep‘t of Econ. Sec., 193 Ariz. 257, 972 P.2d 241 (Ct. App.1998); In re Sade C., 13 Cal. 4th 952, 55 Cal. Rptr. 2d 771, 920 P.2d 716 (1996); In re Harrison, 136 N.C. App. 831, 526 S.E.2d 502 (2000). Some states have applied Anders to involuntary civil commitment proceedings. See In re McQueen, 145 Ill. App. 3d 148, 99 Ill. Dec. 63, 495 N.E.2d 128 (1986) (applying to involuntary civil commitment); In re E.M., No. 03-96-00703-CV, 1997 WL 217186 (Tex. App. May 1, 1997) (applying Anders analysis by analogy to involuntary civil commitment without holding that it is necessary); Jeffrey M. v. Milwaukee County, 185 Wis. 2d 712, 520 N.W.2d 112 (Ct. App. 1994) (applying to involuntary civil commitment). Other states have not. See In re Leon G., 26 P.3d 481, (Ariz. 2001) (finding Anders not applicable to involuntary commitment under sexually violent predator act); In re Richard A., 771 A.2d 572 (N.H. 2001) (not applying state alternative to Anders procedure in involuntary commitment proceedings).
In most cases where Anders has not been extended to civil proceedings, the courts have noted that Anders derives from the constitutional right to counsel in
While the right to appointed counsel in Baker Act involuntary civil commitment proceedings is provided by Florida statute,3 the constitutional guarantee of due process would require no less. See Lynch v. Baxley, 386 F. Supp. 378, 388 (M.D.Ala.1974) (stating that due process applies to involuntary civil commitments and requires that the person who is the subject of the commitment proceeding be represented by counsel, appointed if necessary); In re Beverly, 342 So. 2d 481, 489 (Fla.1977) (“The subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process.“). While the United States Supreme Court has never ruled that Anders procedures are required in the civil context, we agree with the courts cited above that the policies and interests served by the Anders procedure in criminal proceedings are also present in involuntary civil commitments under Florida‘s Baker Act, namely, that the resolution of an appeal of the commitment order be related to the merits of the appeal rather than to the individual‘s ability to hire private counsel. Cf. Robbins, 528 U.S. at 276-77, 120 S. Ct. 746 (stating that due process requires state appellate process to provide fair opportunity for indigent‘s appeal to be resolved on the merits). Further, the curtailment of the fundamental right of liberty is implicated in both criminal proceedings and involuntary civil commitments. See Shuman v. State, 358 So. 2d 1333, 1335 (Fla.1978).
While we determine that the Anders procedure should apply to involuntary civil commitments, we are concerned that it may be a hollow remedy for those appellants who pursue an Anders appeal. At oral argument, the parties recognized that under the present time frame the appeals process often exceeds the six-month commitment period. See
In light of this time frame, we request the Appellate Rules Committee to consider the adoption of expedited procedures for the appeal of civil commitment orders under the Baker Act. Procedures that the committee should consider include, but are not limited to, an expedited time frame for the filing of the notice of appeal, a shortened time for the serving of briefs, and a provision requiring the appointment of a guardian ad litem.
For the reasons expressed above, we quash the decision of the First District Court of Appeal and remand this case to the district court with directions to consider Pullen‘s appeal under the Anders procedures outlined in this opinion.
It is so ordered.
SHAW, ANSTEAD, and LEWIS, JJ., concur.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which WELLS, C.J., and QUINCE, J., concur.
PARIENTE, J., concurring in part and dissenting in part.
I wholeheartedly concur in the majority‘s concern over the need for expedited procedures for appeal of civil commitment orders under the Baker Act and, in particular, a provision requiring the appointment of a guardian ad litem. I do not, however, concur with the extension of the Anders procedure4 to Baker Act civil commitment proceedings, especially after appellate counsel has certified that he or she has conducted a conscientious review of the record and could find no meritorious grounds on which to appeal. The majority would have this good faith certification by appellate counsel trigger a responsibility on the part of the appellate court “to conduct a full and independent review of the record to discover any arguable issues apparent on the face of the record” as is now required by our Anders procedure in criminal appeals. See In re Anders Briefs, 581 So. 2d 149, 151 (Fla.1991). Instead, I would find any additional review by the appellate court to perform an independent
Indeed, I have substantial doubts about the necessity of our current Anders procedure in the criminal context.5 I have never understood the logic of requiring appellate courts to provide a heightened review for those appeals that are the least meritorious by placing on the appellate courts the responsibility of searching the record for potential errors.6
Given these reservations about our current Anders procedures, in my opinion, extending the Anders procedure to Baker Act proceedings is an unnecessary and unwarranted use of judicial resources. Further, we have no information as to what effect extending Anders to Baker Act civil commitment appeals would have on the appellate workload.
I hasten to add that I do not minimize the significant deprivation of liberty resulting from an involuntary commitment. In my opinion, however, the very safeguards attendant to the Baker Act proceedings, including the right to appellate review, the appointment of appellate counsel to determine any procedural or substantive irregularities in the commitment, and the maximum duration of a six-month period of commitment before another review, comport with due process. Considering the three-factor test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), I would find no due process deprivation.7 I would rely instead on the certification of counsel. Moreover, rather than extending Anders to Baker Act civil commitment proceedings, I would consider revisiting the wisdom and necessity of our current Anders procedures in criminal cases.
WELLS, C.J., and QUINCE, J., concur.