By Alex De Grand, Legal Writer, State Bar of Wisconsin

Oct. 14, 2009 – Appellate counsel appointed by the circuit court may use the no-merit procedure just as lawyers appointed by the State Public Defender, the Wisconsin Court of Appeals held today.

Wis. Stat. Rule 809.32 provides that lawyers appointed by the SPD may file a no-merit report after concluding a direct appeal would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967). No-merit reports, filed at the client’s request or when the client refuses to permit the lawyer to close the file without further representation, identify anything in the record that might arguably support the appeal with discussion of the reasons why each identified issue lacks merit.

In State v. Brown, 2008XX702-CR, the court observed that nothing in the statute “bars its use to protect the appellate rights of indigent defendants who are represented by court-appointed counsel.” In fact, the court of appeals noted, the U.S. Supreme Court considered the statute  relevant to the obligations of court-appointed attorneys in McCoy v. Court of Appeals, 486 U.S. 429 (1988).

Further, the court of appeals remarked that it has previously construed the statute liberally in Brown County v. Edward C.T., 218 Wis. 2d 160 (Ct. App. 1998). In Edward C.T., the court held that counsel may file no-merit reports in appeals from termination of parental rights, but that the briefing deadlines contained in the statute did not apply.

Following Edward C.T., the court concluded cases in which the circuit court has appointed appellate counsel are another type of litigation where some of the statute’s procedural components do not apply.