TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 8, 2008
RE: Rule 24, N.D.R.App.P., Appeals by Indigent Defendants
Chief Justice VandeWalle requests that the Committee discuss whether an appellate rule setting out an Anders brief procedure should be adopted in North Dakota.
In Anders v. California, 386 U.S. 738, 739 (1967) the U.S. Supreme Court discussed representation on appeal by counsel in cases involving indigent defendants. The Court said: "[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal."
The brief produced by counsel in such a case is an "Anders brief." In a jurisdiction that accepts Anders briefs, the court examines the brief, determines whether the appeal is "wholly frivolous," and if it is, it allows counsel to withdraw and dismisses the appeal. The North Dakota Supreme Court has rejected the Anders brief concept in two cases, most recently State v. Vondal, 1998 ND 188, 585 N.W.2d 129.
The Vondal court accepted the reasoning of State v. Lewis, 291 N.W.2d 735 (N.D. 1980) that allowing an Anders-style withdrawal and dismissal in North Dakota would violate the state constitution and state law. The Vondal court said that, under North Dakota law, "in some instances an attorney may have to appeal a case he or she feels is without merit." A copy of the Vondal opinion is attached.
In explaining why an Anders rule might now be needed, Ms. Miller said it is rare that an attorney for an indigent defendant will claim to have a "wholly frivolous" appeal. Instead, there have been increasing conflicts between attorneys and indigent clients as to what the grounds for appeal are in a given case. Consequently, there have been an increasing number of cases where an indigent client will request a new attorney more willing to argue the grounds for appeal advocated by the defendant, grounds which the present attorney might consider non-meritorious.
Ms. Miller has queried court clerks around the country on their approach to such cases. A copy of the responses to her query are attached. The responses show that states take a variety of approaches to conflicts between indigent clients and their appointed attorneys on appeal. While most states do not have rules to govern the situation, some do allow indigent clients to submit supplemental briefs on appeal when the client is not satisfied by the brief submitted by the appointed attorney.
Washington is one of the few states that has put its approach to Anders briefs in a rule. It also has a rule allowing indigent defendants to submit supplemental briefs on appeal. To give the Committee a point to begin discussion of this issue, Staff has drafted a proposed rule on appeal by the indigent defendants based on the Washington approach. The Washington rules, and the draft proposal, are attached.
One factor the Committee may wish to consider in its discussion of the proposed rule is whether a party who files a supplemental brief should be allowed to participate in oral argument before the court. Under N.D.R.App.P. 34, the court may decide that oral argument is unnecessary in a given case or a party may waive oral argument, but the default position is that there will be oral argument when a case is appealed. The Committee may wish to consider whether there should be specific language in the proposed rule on oral argument after submission of a supplemental brief.
The general approach to oral argument in Washington is similar to North Dakota: "The appellate court may, on its own initiative or on motion of a party, decide a case without oral argument." Wash.R.App.P. 11.4. In other words, the court or a party must take action before forgoing oral argument.