I don't know all that much about Anders/Wende briefs. I don't write them. They very rarely lead to published opinions. So perhaps you should take what I'm about to say with a grain of salt.
But when I read the three pages of content in this opinion, I was struck by just how internally inconsistent the articulated standards appear to be.
I definitely agree with Justice Rylaarsdam that counsel need not raise silly issues. If they're clearly unmeritorious, you're not obligated to raise them. So, as Justice Rylaarsdam quotes from a prior case, you're not obligated to "raise[] one or two frivolous issues, easily disposed of by the inspection of a few pages of transcript." Absolutely right.
On the other hand, the other quote Justice Rylaarsdam uses seems absolutely wrong to me. That quote says: "We hold that an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious." Not in my book.
If I'm appellate counsel, I am not the one to authoritatively conclude whether an argument is right or not. I may have my opinion. Truth be told: I normally do. But that's not my job. I'm here to decide if an argument on my client's behalf is possibly meritorious. If so, I raise it. If not, I don't. That's it. Whether I think that the argument has merit is, in my view, beside the point.
Let's make this concrete. Assume I've been appointed to represent a criminal defendant on appeal. I have reviewed the record and the law, and have come up with four different possible arguments:
I believe that Argument One is (a) likely to prevail, and (b) right on the merits. Clearly I have to raise that one. We all agree.
I believe that Argument Two is (a) unlikely to prevail, but (b) is right on the merits. Surely I should raise that one too. The fact that the justices on the Court of Appeal may, in my estimation, not be as bright as I am, or may read the law the wrong way, shouldn't stop be from raising an argument that I believe correctly states the law. If only because I may be wrong (and let's hope I am!) and they may well end up (rightly) agreeing with me. So I'm hoping we all concur that I have a duty on behalf of my client to raise Argument Two.
I believe that Argument Three is (a) likely to prevail, but (b) wrong on the merits. Now, come on. I surely have to raise that one, right?! It's going to get my client off. So, on his behalf, I clearly have to raise it. The fact that I might think it erroneously reads the law doesn't matter. It's arguable; indeed, so arguable that my prediction will be that neutral judges buy it and write it into law. At which point it is law. The fact that I don't think it's, in fact, a proper reading of the law is irrelevant. Surely we can agree on that too, right? I'm the lawyer. Not the judge. My subjective belief is entirely irrelevant.
So that leaves us with Argument Four. One that I believe is (a) unlikely to prevail, and (b) wrong on the merits. My view is that (b) doesn't do any work here. Only (a). To put it differently, my belief as to the "merits" is a one-way ratchet. If I think the law in fact says X, I've got to raise that issue, even if I don't think the Court of Appeal will agree (assuming that my argument isn't affirmatively foreclosed by precedent such that it's frivolous to make an argument that my position is in fact "the law" or a good faith argument for the modification or reversal of existing law). By contrast, the fact that I've decided (internally) that the law doesn't really say X doesn't matter. We already established that in Argument Three. Instead, what's doing the work -- what's dispositive -- with respect to Argument Four is that this argument's unlikely to in fact prevail.
Which means we also need to drill down on (a). What do we mean by "unlikely to prevail"? Usual non-legal usage would mean below 50/50. But that's not the appropriate legal standard. I raise plenty of arguments that I think have less than a fifty percent chance of being accepted. So does every single competent lawyer in the history of the universe. 'Cause guess what? You may be wrong.
Moreover, collectively, even a low probability of success can result in a win. Counsel A has three independent arguments, each with only a 30% chance of success. Counsel B has one argument with a 60% chance of success. Guess who prevails more often? Counsel A. Surely you can't tell me that Counsel A doesn't have a duty to raise these three arguments on his client's behalf just because he concludes that each one of them is unlikely to succeed. Moreover, any such rule would clearly be regressive, since a rich client could (and would) ethically find a lawyer to make 'em, whereas the poor client with appointed counsel would be stuck with your silly rule and stay in prison while the rich guy goes free. Such a rule simply isn't supportable.
So by "unlikely to prevail," I think we clearly mean at least "less than 30% likely to prevail". Truthfully, a lot less. Like in the single digits. In my mind, what we mean to say is that this argument is basically "frivolous". It's silly. It has such a low (or zero) probability of success that you're under no duty to raise it. Whether -- and this part is important -- your client is rich (and hence you're retained) or poor (and you're appointed).
So when Justice Rylaarsdam's opinion -- quoting Justice Garner -- says that "an arguable issue on appeal consists of two elements," the first of which is that "the issue must be one which, in counsel’s professional opinion, is meritorious," if we're giving the term "meritorious" it's normal meaning, that's an erroneous proposition, in my mind. We've instead got to separate out the objective and subjective beliefs with respect to "merit" and process them along the metric delineated with respect to Arguments One through Four above. Moreover, if we get down the line to Argument Four, we've then got to decide the standard -- which I think is darn near (if not at) frivolousness -- and apply it.
None of which Justice Rylaarsdam's quote does. It instead just flatly says that an argument has to be "meritorious". That's the wrong standard, in my view. On a plethora of levels.
Justice Rylaarsdam, like Justice Garner before him, admits that even though he's saying that "the issue must be one which, in counsel’s professional opinion, is meritorious" in order to be raised, "[t]hat is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success." Which is helpful, maybe, a tiny bit, but not at all sufficiently clear or adequate to dispel the normal meaning of the term "meritorious".
With respect to the the former caveat -- that the contention must not "necessarily" achieve success -- I think we can all agree that's a response to a complete strawman. Obviously no one's saying (or has ever said) that counsel only has to raise issues that have 100% probability of success (i.e., will "necessarily achieve success"). That's just silly. So thanks for saying that's not the standard, but that doesn't really help us very much.
So that leaves us with the fact that the argument "must have a reasonable potential for success". Okay. If we can agree on what you mean by that, maybe we can reach consensus. But two points:
(1) Notice that we're not talking at all about subjective beliefs here. We're merely talking about the objective probability of success. Two problems: (A) That somewhat conflicts with the opening line that to be raised, an issue must "be one which, in counsel’s professional opinion, is meritorious." So if you're really redefining the term "meritorious" here, you need to be more explicit that you're moving from the subjective to the objective; and (B) even so charitably interpreted, this redefinition still does not correctly resolve Argument Two -- the one that's objectively (you conclude) correct, but that you nonetheless conclude is objectively unlikely to prevail. Moreover:
(2) You haven't told me what a "reasonable" potential for success is. I infer that you don't mean 50 percent. (Which is what your use of the term "meritorious" would normally mean in this context. An argument is either a "meritorious" argument or an "unmeritorious" one, and the binary nature of that description necessarily implies a 50/50 dividing line.) Is it 30 percent? Ten? Three? That's where the rubber hits the road. And you're not telling me pretty much at all what's rubber and what's road.
Moreover, I've got a keen sense that's what a "reasonable" potential for success to you isn't the same thing to me. Justice Rylaarsdam publishes this opinion to make clear his view that arguments that he labels "arguable-but-unmeritorious" should not be raised. Something that's "arguable but unmeritorious" sounds very much to me like an argument that's -- depending on whether we're talking objectively or subjectively -- (1) only ten percent (or so) likely to prevail ("arguable"), or (2) lacks actual merit (i.e., a "wrong" view of the law or facts).
If it's the former, we disagree -- sharply -- on the number. If it's the latter, we disagree -- sharply -- on the relevant standards (see Argument Three). And if, as I fear, Justice Rylaarsdam might perhaps mean both, well, that's a double whammy, isn't it?
So I like that Justice Rylaarsdam publishes this opinion. Truly, I do. There are a lot of these briefs. It's an important thing. We want to get the standards right. If there's a practice going on that we think is a waste of resources or improperly applies the law, we should (1) make the law clear, and (2) root these things out. Count me in.
But I'm not at all persuaded that Justice Rylaarsdam's opinion either (1) sufficiently clarifies things, or (2) articulates the right standard in any event. To put it a different way, the opinion is unclear, and if it were actually clearer (and hence helpful), it might well be wrong.
I've got to say, however, that it's possible that Justice Rylaarsdam and I agree. I'd love to hear (truly) his take -- or the take of the rest of the panel (Justices Bedsworth and Thompson) [heck, pretty much anyone's informed take] -- on Arguments One through Four. Am I right that all of 'em get made, with the sole exception of Arguments Four that are frivolous? Or do we disagree on only the standard for Four? Or do we disagree on that as well as Two and/or Three?
That'd be totally helpful for appointed counsel to hear. Because I think answering those questions would actually make things clear.
And yes, I know, we can totally achieve consensus, and all agree, on opinions that are sufficiently indeterminate and unclear that everyone can read into them whatever they want. But that's not what we should be doing. We should ask, and answer, the hard questions.
I hope that Justice Rylaarsdam -- and/or others on the Court of Appeal -- do precisely that.
