Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987)
Case details
Citation
481 U.S. 537
Full caption
BOARD OF DIRECTORS OF ROTARY INTERNATIONAL ET al. v. ROTARY CLUB OF DUARTE ET AL.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
May 4, 1987
Majority
Powell (Justice), joined by Rehnquist (Chief Justice), Brennan (Justice), White (Justice), Marshall (Justice), Stevens (Justice)
Majority
Rehnquist (Chief Justice), joined by White (Justice), Powell (Justice), O’Connor (Justice), Scalia (Justice)
Concurrence
Blackmun (Justice) in the judgment
Dissent
Brennan (Justice), joined by Marshall (Justice)
Recused
Blackmun (Justice), O’Connor (Justice)
BOARD OF DIRECTORS OF ROTARY INTERNATIONAL ET al. v. ROTARY CLUB OF DUARTE ET AL.
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
No. 86-421. Argued March 30, 1987—Decided May 4, 1987
Rotary International is a nonprofit corporation composed of local Rotary Clubs. Its purposes are to provide humanitarian service, to encourage high ethical standards in all vocations, and to help build world peace and good will. Individuals are admitted to local club membership according to a “classification system” based on business, professional, and institutional activity in the community. Although women are permitted to attend meetings, give speeches, receive awards, and form auxiliary organizations, the Rotary constitution excludes women from membership. Because it had admitted women to active membership, the Duarte, California, Rotary Club’s membership in the international organization was terminated. That club and two of its women members filed a suit alleging that the termination violated California’s Unruh Act (Act), which entitles all persons, regardless of sex, to full and equal accommodations, advantages, facilities, privileges, and services in all business establishments in the State. The state trial court entered judgment for Rotary International, concluding that neither it nor the Duarte Club is a “business establishment” within the meaning of the Act. However, the State Court of Appeal reversed on this point, and rejected the contention that Rotary’s policy of excluding women is protected by the First Amendment. Accordingly, the court ordered the Duarte Club’s reinstatement, and enjoined the enforcement of the gender requirements against it. Held:
1. The Unruh Act does not violate the First Amendment by requiring
California Rotary Clubs to admit women. Pp. 544-549.
(a) Application of the Act to local Rotary Clubs does not interfere unduly with club members’ freedom of private association. In determining whether a particular association is sufficiently intimate or private to warrant constitutional protection, consideration must be given to factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. Here, the relationship among Rotary Club members does not warrant protection, in light of the potenlally large size of local clubs, the high turnover rate among club mem-ers, the inclusive nature of each club’s membership, the public purposes ehind clubs’ service activities, and the fact that the clubs encourage the p. 538participation of strangers in, and welcome media coverage of, many of their central activities. Pp. 544-547.
(b) Application of the Act to California Rotary Clubs does not violate the First Amendment right of expressive association. Although clubs engage in a variety of commendable service activities that are protected by the First Amendment, the evidence fails to demonstrate that admitting women will affect in any significant way the existing members’ ability to carry out those activities. Moreover, the Act does not require clubs to abandon or alter their classification and admission systems, but, in fact, will permit them to have an even more representative membership with a broadened capacity for service. Even if the Act does work some slight infringement of members’ rights, that infringement is justified by the State’s compelling interests in eliminating discrimination against women and in assuring them equal access to public accommodations. The latter interest extends to the acquisition of leadership skills and business contacts as well as tangible goods and services. Pp. 548-549.
2. The contentions that the Act is unconstitutionally vague and overbroad were not properly presented to the state courts, and therefore will not be reviewed by this Court. Pp. 549-550.
178 Cal. App. 3d 1035, 224 Cal. Rptr. 213, affirmed.
Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, and Stevens, JJ., joined. Scalia, J., concurred in the judgment. Blackmun and O’Connor, JJ., took no part in the consideration or decision of the case.
William P. Sutter argued the cause for appellants. With him on the briefs were Peter F. Lovato III and Wm. John Kennedy.
Judith Resnik argued the cause for appellees. On the brief were Carol Agate, Sanford K. Smith, Blanche C. Bersch, Paul Hoffman, and Fred Okrand.
Marian M. Johnston argued the cause for intervenor State of California. With her on the brief were John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Beverly Tucker, Deputy Attorney General.
Justice Powell delivered the opinion of the Court.
We must decide whether a California statute that requires California Rotary Clubs to admit women members violates the First Amendment.
I A
Rotary International (International) is a nonprofit corporation founded in 1905, with headquarters in Evanston, Illinois. It is “an organization of business and professional men united worldwide who provide humanitarian service, encourage high ethical standards in all vocations, and help build goodwill and peace in the world.” Rotary Manual of Procedure 7 (1981) (hereinafter Manual), App. 35. Individual members belong to a local Rotary Club rather than to International. In turn, each local Rotary Club is a member of International. Ibid. In August 1982, shortly before the trial in this case, Inter-
Legal Foundation of America by Jean F. Powers and David Crump; and for Pilot Club International et al. by Stephen G. Seliger.
Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, Richard S. Slowes, Assistant Solicitor General, and Peter M. Ackerberg, Special Assistant Attorney General, and for the Attorneys General for their respective States as follows: Joseph I. Lieberman of Connecticut, Neil F. Hartigan of Illinois, William J. Guste of Louisiana, W. Cary Edwards of New Jersey, Anthony J. Celebrezze, Jr., of Ohio, Dave Frohn'mayer of Oregon, Jim Mattox of Texas, David L. Wilkinson of Utah, and p. 540national comprised 19,788 Rotary Clubs in 157 countries, with a total membership of about 907,750. Brief for Appellants 7.
Individuals are admitted to membership in a Rotary Club according to a “classification system.” The purpose of this system is to ensure “that each Rotary Club includes a representative of every worthy and recognized business, professional, or institutional activity in the community.” 2 Rotary Basic Library, Club Service 67-69 (1981), App. 86. Each active member must work in a leadership capacity in his business or profession. The general rule is that “one active member is admitted for each classification, but he, in turn, may propose an additional active member, who must be in the same business or professional classification.”1 Id., at 7, App. 86. Thus, each classification may be represented by two active members. In addition, “senior active” and “past service” members may represent the same classifications as active members. See Standard Rotary Club Constitution, Art. V, §§2-5, Record 97-98. There is no limit to the number of clergymen, journalists, or diplomats who may be admitted to membership. Manual 31, 33, App. 38-39.
Subject to these requirements, each local Rotary Club is free to adopt its own rules and procedures for admitting new members. Id., at 7, App. 35. International has promulgated Recommended Club By-laws providing that candidates for membership will be considered by both a “classifications committee” and a “membership committee.” The classifications committee determines whether the candidate’s business or profession is described accurately and fits an “open” classification. The membership committee evaluates the candidate’s “character, business and social standing, and general p. 541eligibility.” Brief for Appellants 7-8. If any member objects to the candidate’s admission, the final decision is made by the club’s board of directors.
1
Rotary Clubs may establish separate classifications for subcategories of a business or profession as long as the classification “describe[s] the member’s principal and recognized professional activity . . . .” 2 Rotary Basic Library, Club Service 8 (1981), App. 87. For example, a single Rotary Club may admit categories and subcategories of lawyers: e. g., trial, corpo rate, tax, labor, and so on. Ibid.
Membership in Rotary Clubs is open only to men. Standard Rotary Club Constitution, Art. V, § 2, Record 97. Herbert A. Pigman, the General Secretary of Rotary International, testified that the exclusion of women results in an “aspect of fellowship . . . that is enjoyed by the present male membership,” App. to Juris. Statement G-52, and also allows Rotary to operate effectively in foreign countries with varied cultures and social mores. Although women are not admitted to membership, they are permitted to attend meetings, give speeches, and receive awards. Women relatives of Rotary members may form their own associations, and are authorized to wear the Rotary lapel pin. Young women between 14 and 28 years of age may join Interact or Rotaract, organizations sponsored by Rotary International.
B
In 1977 the Rotary Club of Duarte, California, admitted Donna Bogart, Mary Lou Elliott, and Rosemary Freitag to active membership. International notified the Duarte Club that admitting women members is contrary to the Rotary constitution. After an internal hearing, International’s board of directors revoked the charter of the Duarte Club and terminated its membership in Rotary International. The Duarte Club’s appeal to the International Convention was unsuccessful.
The Duarte Club and two of its women members filed a complaint in the California Superior Court for the County of Los Angeles. The complaint alleged, inter alia, that appellants’ actions violated the Unruh Civil Rights Act, Cal. Civ. Code Ann. §51 (West 1982).2 Appellees sought to enjoin
The ^nru^ Civil Rights Act provides, in part:
All persons within the jurisdiction of this state are free and equal, and o matter what their sex, race, color, religion, ancestry, or national origin p. 542International from enforcing its restrictions against admitting women members, revoking the Duarte Club’s charter, or compelling delivery of the charter to any representative of International. Appellees also sought a declaration that appellants’ actions had violated the Unruh Act. After a bench trial, the court concluded that neither Rotary International nor the Duarte Club is a “business establishment” within the meaning of the Unruh Act. The court recognized that “some individual Rotarians derive sufficient business advantage from Rotary to warrant deduction of Rotarian expenses in income tax calculations, or to warrant payment of those expenses by their employers . . . .” App. to Juris. Statement B-3. But it found that “such business benefits are incidental to the principal purposes of the association ... to promote fellowship . . . and . . . ‘service’ activities.” Ibid. The court also found that Rotary clubs do not provide their members with goods, services, or facilities. On the basis of these findings and conclusions, the court entered judgment for International.
The California Court of Appeal reversed. 178 Cal. App. 3d 1035, 224 Cal. Rptr. 213 (1986). It held that both Rotary International and the Duarte Rotary Club are business establishments subject to the provisions of the Unruh Act. For purposes of the Act, a “ ‘business’ embraces everything about which one can be employed,” and an “establishment” includes “not only a fixed location, . . . but also a permanent ‘commercial force or organization’ or a ‘permanent settled position (as in life or business).’ ” O’Connor n. Village Green Owners Assn., 33 Cal. 3d 790, 795, 662 P. 2d 427, 430 (1983) (quoting Burks v. Poppy Construction Co., 57 Cal. 2d 463, 468-469, 370 P. 2d 313, 316 (1962)). The Court of Appeal identified several “businesslike attributes” of Rotary International, including its complex structure, large staff and budget, and ex-
are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatso ever.” Cal. Civ. Code Ann. §51 (West 1982).
tensive publishing activities. The court held that the trial court had erred in finding that the business advantages afforded by membership in a local Rotary Club are merely incidental. It stated that testimony by members of the Duarte Club “leaves no doubt that business concerns are a motivating factor in joining local clubs,” and that “business benefits [are] enjoyed and capitalized upon by Rotarians and their businesses or employers.” 178 Cal. App. 3d, at 1057, 224 Cal. Rptr., at 226. The Court of Appeal rejected the trial court’s finding that the Duarte Club does not provide goods, services, or facilities to its members. In particular, the court noted that members receive copies of the Rotary magazine and numerous other Rotary publications, are entitled to wear and display the Rotary emblem, and may attend conferences that teach managerial and professional techniques.
The court also held that membership in Rotary International or the Duarte Club does not give rise to a “continuous, personal, and social” relationship that “take[s] place more or less outside public view.” Ibid, (internal quotation marks and citations omitted). The court further concluded that admitting women to the Duarte Club would not seriously interfere with the objectives of Rotary International. Finally, the court rejected appellants’ argument that their policy of excluding women is protected by the First Amendment principles set out in Roberts v. United States Jaycees, 468 U. S. 609 (1984). It observed that “[n]othing we have said prevents, or can prevent, International from adopting or attempting to enforce membership rules or restrictions outside of this state.” Id., at 1066, 224 Cal. Rptr., at 231. The court ordered appellants to reinstate the Duarte Club as a member of Rotary International, and permanently enjoined them from enforcing or attempting to enforce the gender requirement against the Duarte Club.
The California Supreme Court denied appellants’ petition or review. We postponed consideration of our jurisdiction to the hearing on the merits. 479 U. S. 929 (1986). We p. 544conclude that we have appellate jurisdiction,3 and affirm the judgment of the Court of Appeal.
II
In Roberts v. United States Jaycees, supra, we upheld against First Amendment challenge a Minnesota statute that required the Jaycees to admit women as full voting members. Roberts provides the framework for analyzing appellants’ constitutional claims. As we observed in Roberts, our cases have afforded constitutional protection to freedom of association in two distinct senses. First, the Court has held that the Constitution protects against unjustified government interference with an individual’s choice to enter into and maintain certain intimate or private relationships. Second, the Court has upheld the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities. In many cases, government interference with one form of protected association will also burden the other form of association. In Roberts we determined the nature and degree of constitutional protection by considering separately the effect of the challenged state action on individuals’ free-
3 We have appellate jurisdiction to review a final judgment entered by the highest court of a State in which decision could be had “where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.” 28 U. S. C. § 1257(2). Appellants squarely challenged the constitutionality of the Unruh Act, as applied, and the Court of Appeal sustained the validity of the statute as applied, y e have held consistently that a state statute is sustained within the meaning of § 1257(2) when a state court holds it applicable to a particular set o facts as against the contention that such application is invalid on federa grounds.” Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434,44 (1979) (citing Cohen v. California, 403 U. S. 15, 17-18 (1971); Warren Trading Post v. Arizona Tax Common, 380 U. S. 685, 686, and n. 1 (1965), Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 61, n. 3 (1963); Dahn e Walker Milling Co. v. Bondurant, 257 U. S. 282, 288-290 (1921)).
dom of private association and their freedom of expressive association. We follow the same course in this case.4
A
The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fun-
damental element of liberty protected by the Bill of Rights.
Such relationships may take various forms, including the
most intimate. See Moore v. East Cleveland, 431 U. S. 494,
503-504 (1977) (plurality opinion). We have not attempted
to mark the precise boundaries of this type of constitutional
protection. The intimate relationships to which we have ac-
corded constitutional protection include marriage, Zablocki
and bearing of children, Carey v. Population Services Inter-
national, 431 U. S. 678, 684-686 (1977); child rearing and
535 (1925); and cohabitation with relatives, Moore v. East
Cleveland, supra, at 503-504. Of course, we have not held
that constitutional protection is restricted to relationships
among family members. We have emphasized that the First
Amendment protects those relationships, including family
relationships, that presuppose “deep attachments and com-
mitments to the necessarily few other individuals with whom
one shares not only a special community of thoughts, experi-
ences, and beliefs but also distinctively personal aspects of
620. But in Roberts we observed that “[djetermining the
limits of state authority over an individual’s freedom to enter
into a particular association . . . unavoidably entails a careful
International, an association of thousands of local Rotary Clubs, can c aim no constitutionally protected right of private association. Moreover, 1 s expressive activities are quite limited. See infra, at 548-549. Because the Court of Appeal held that the Duarte Rotary Club also is a business establishment subject to the provisions of the Unruh Act, we proceed ° consider whether application of the Unruh Act violates the rights of members of local Rotary Clubs.
assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.” 468 U. S., at 620 (citing Runyon v. McCrary, 427 U. S. 160, 187-189 (1976) (Powell, J., concurring)). In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. 468 U. S., at 620.
The evidence in this case indicates that the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection. The size of local Rotary Clubs ranges from fewer than 20 to more than 900. App. to Juris. Statement G-15 (deposition of Herbert A. Pigman, General Secretary of Rotary International). There is no upper limit on the membership of any local Rotary Club. About 10 percent of the membership of a typical club moves away or drops out during a typical year. 2 Rotary Basic Library, Club Service 9-11 (1981), App. 88. The clubs therefore are instructed to “keep a flow of prospects coming” to make up for the attrition and gradually to enlarge the membership. Ibid. The purpose of Rotary “is to produce an inclusive, not exclusive, membership, making possible the recognition of all useful local occupations, and enabling the club to be a true cross section of the business and professional life of the community.” 1 Rotary Basic Library, Focus on Rotary 60-61 (1981), App. 84. The membership undertakes a variety of service projects designed to aid the community, to raise the standards of the members’ businesses and professions, and to improve international relations.5 Such an in-
6 We of course recognize that Rotary Clubs, like similar organizations, perform useful and important community services. Rotary Clubs in the vicinity of the Duarte Club have provided meals and transportation to the elderly, vocational guidance for high school students, a swimming program for handicapped children, and international exchange programs, among many other service activities. Record 217H-217J.
elusive “fellowship for service based on diversity of interest,” ibid., however beneficial to the members and to those they serve, does not suggest the kind of private or personal relationship to which we have accorded protection under the First Amendment. To be sure, membership in Rotary Clubs is not open to the general public. But each club is instructed to include in its membership “all fully qualified prospective members located within its territory,” to avoid “arbitrary limits on the number of members in the club,” and to “establish and maintain a membership growth pattern.” Manual 139, App. 61-62.
Many of the Rotary Clubs’ central activities are carried on in the presence of strangers. Rotary Clubs are required to admit any member of any other Rotary Club to their meetings. Members are encouraged to invite business associates and competitors to meetings. At some Rotary Clubs, the visitors number “in the tens and twenties each week.” App. to Juris. Statement G-24 (deposition of Herbert A. Pigman, General Secretary of Rotary International). Joint meetings with the members of other organizations, and other joint activities, are permitted. The clubs are encouraged to seek coverage of their meetings and activities in local newspapers. In sum, Rotary Clubs, rather than carrying on their activities in an atmosphere of privacy, seek to keep their “windows and doors open to the whole world,” 1 Rotary Basic Library, Focus on Rotary 60-61 (1981), App. 85. We therefore conclude that application of the Unruh Act to local Rotary Clubs does not interfere unduly with the members’ freedom of private association.6
Appellants assert that we “approved” a distinction between the Jaycees and the Kiwanis Club in Roberts v. United States Jaycees, 468 U. S.
, 630 (1984). Brief for Appellants 21. Appellants misconstrue Rob-s- In that case we observed that the Minnesota court had suggested wanis Clubs were outside the scope of the State’s public accommodathM" W' We concluded that this refuted the Jaycees’ arguments that wh,, mnes°ta statute was vague and overbroad. We did not consider ci er relati°nsIup among members of the Kiwanis Club was suffien y intimate or private to warrant constitutional protection. Similarly,
B
The Court also has recognized that the right to engage in activities protected by the First Amendment implies “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts n. United States Jaycees, 468 U. S., at 622. See NAACP n. Claiborne Hardware Co., 458 U. S. 886, 907-909, 932-933 (1982). For this reason, “[¡Impediments to the exercise of one’s right to choose one’s associates can violate the right of association protected by the First Amendment . . . .” Hishon n. King & Spalding, 467 U. S. 69, 80, n. 4 (1984) (Powell, J., concurring) (citing NAACP v. Button, 371 U. S. 415 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958)). In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes.
As a matter of policy, Rotary Clubs do not take positions on “public questions,” including political or international issues. Manual 115, App. 58-59. To be sure, Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment. But the Unruh Act does not require the clubs to abandon or alter any of these activities. It does not require them to abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will, and peace. Nor does it require them to abandon their classification system or admit members who do not reflect a cross section of the community. Indeed, by
we have no occasion in this case to consider the extent to which tne First Amendment protects the right of individuals to associate in the many clu and other entities with selective membership that are found througnou the country. Whether the “zone of privacy” established by the Firs Amendment extends to a particular club or entity requires a carefu i quiry into the objective characteristics of the particular relationships a issue. Roberts v. United States Jaycees, supra, at 620. Cf. Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 179-180 (1972) (Douglas, J., dissenting). p. 549opening membership to leading business and professional women in the community, Rotary Clubs are likely to obtain a more representative cross section of community leaders with a broadened capacity for service.7
Even if the Unruh Act does work some slight infringement on Rotary members’ right of expressive association, that infringement is justified because it serves the State’s compelling interest in eliminating discrimination against women. See Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per curiam) (right of association may be limited by state regulations necessary to serve a compelling interest unrelated to the suppression of ideas). On its face the Unruh Act, like the Minnesota public accommodations law we considered in Roberts, makes no distinctions on the basis of the organization’s viewpoint. Moreover, public accommodations laws “plainly serv[e] compelling state interests of the highest order.” 468 U. S., at 624. In Roberts we recognized that the State’s compelling interest in assuring equal access to women extends to the acquisition of leadership skills and business contacts as well as tangible goods and services. Id., at 626. The Unruh Act plainly serves this interest. We therefore hold that application of the Unruh Act to California Rotary Clubs does not violate the right of expressive association afforded by the First Amendment.8
Ill
Finally, appellants contend that the Unruh Act is unconstitutionally vague and overbroad. We conclude that these contentions were not properly presented to the state courts.
In 1980 women were reported to make up 40.6 percent of the managerial and professional labor force in the United States. U. S. Department of Commerce, Statistical Abstract of the United States 400 (1986).
Appellants assert that admission of women will impair Rotary’s effeciveness as an international organization. This argument is undercut by e fact that the legal effect of the judgment of the California Court of ppeal is limited to the State of California. See supra, at 543. Appelalso is undermined by the fact that women already attend e Rotary Clubs’ meetings and participate in many of their activities.
It is well settled that this Court will not review a final judgment of a state court unless “the record as a whole shows either expressly or by clear implication that the federal claim was adequately presented in the state system.” Webb v. Webb, 451 U. S. 493, 496-497 (1981). Appellants did not present the issues squarely to the state courts until they filed their petition for rehearing with the Court of Appeal. The court denied the petition without opinion. When “‘“the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.”’” Exxon Corp. v. Eagerton, 462 U. S. 176, 181, n. 3 (1983) (quoting Fuller v. Oregon, 417 U. S. 40, 50, n. 11 (1974) (in turn quoting Street v. New York, 394 U. S. 576, 582 (1969))). Appellants have made no such showing in this case.9
IV
The judgment of the Court of Appeal of California is affirmed.
It is so ordered.
Justice Scalia concurs in the judgment.
Justice Blackmun and Justice O’Connor took no part in the consideration or decision of this case.
’Appellants point to,a passage in the brief they filed in the California Court of Appeal that quotes this Court’s opinion in NAACP v. Button, 371 U. S. 415, 435 (1963): “ ‘It is enough [for unconstitutionality] that a vague and broad statute lends itself to selective enforcement against unpopular causes.’ ” Brief for Respondents in B001663 (Cal. Ct. App.), p. 26 (brackets in original) (quoted in Brief for Appellants 37-37). The quotation occurs in the course of an argument that the Unruh Act should be applm only to memberships in entities that are a vehicle for the public sale o goods, services, or commercial advantages. This casual reference to a ie eral case, in the midst of an unrelated argument, is insufficient to inform a state court that it has been presented with a claim subject to our appeila e jurisdiction under 28 U. S. C. § 1257(2).
Syllabus
PENNSYLVANIA v. FINLEY
CERTIORARI TO THE SUPERIOR COURT OF PENNSYLVANIA No. 85-2099. Argued March 2, 1987—Decided May 18, 1987
Respondent was convicted of second-degree murder and sentenced to life imprisonment in a Pennsylvania trial court, and the Pennsylvania Su-
preme Court affirmed on direct appeal. In respondent’s subsequent
postconviction proceedings, the trial court, as required by state law,
appointed counsel to assist her. Counsel reviewed the trial record;
consulted with respondent; concluded that there were no arguable bases
for collateral review; advised the trial court in writing of his conclusion;
and requested permission to withdraw. After reviewing the record, the
court agreed that there were no arguably meritorious issues and dis-
missed the proceedings. Respondent acquired new appointed counsel
and appealed to the Pennsylvania Superior Court, which concluded that
counsel’s conduct in the trial court violated respondent’s constitutional
rights, and remanded the case for further proceedings. The Superior
Court relied on Anders v. California, 386 U. S. 738, which held that
(1) when an attorney appointed to represent an indigent defendant on
direct appeal finds the case to be wholly frivolous he must request the
court’s permission to withdraw and submit a brief referring to anything
in the record arguably supporting the appeal, (2) a copy of the brief must
be furnished the indigent and time must be allowed for him to raise any
points that he chooses, and (3) the court itself must then decide whether
the case is wholly frivolous.
Held: The court below improperly relied on the Federal Constitution to extend the Anders procedures to these collateral postconviction proceedings. Denial of counsel to indigents on first appeal as of right amounts to discrimination against the poor in violation of the Fourteenth Amendment, and Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel. The right to appointed counsel extends to only the first appeal of right, and since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, Ross v. Moffitt, 417 U. S. 600, a fortiori, he has no such right when attacking, in postconviction proceedings, a conviction that has become final upon exhaustion of the appellate process. The Anders procedures do not apply to a state-created right to counsel on postconviction review just because they are applied to the right to counsel on first appeal as of right. Respondent’s access to a lawyer was the p. 552result of the State’s decision, not the command of the Federal Constitution. The procedures followed by her trial counsel in the postconviction proceedings fully comported with the fundamental fairness mandated by the Due Process Clause. States have no obligation to provide postconviction relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well. Nor was the equal protection guarantee of meaningful access violated in this case. Moreover, there is no merit to respondent’s contention that once the State has granted a prisoner access to counsel on postconviction review, the Due Process Clause of the Fourteenth Amendment requires that counsel’s actions comport with the Anders procedures. Evitts v. Lucey, 469 U. S. 387, distinguished. Pennsylvania made a valid choice to give prisoners the assistance of counsel in postconviction proceedings without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position—at trial and on first appeal as of right. Pp. 554-559. 330 Pa. Super. 313, 479 A. 2d 568, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which White, Powell, O’Connor, and Scalia, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 559. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 559. Ste - vens, J., filed a dissenting opinion, post, p. 570.
Gaele McLaughlin Barthold argued the cause for petitioner. With her on the briefs were Ann C. Lebowitz, Ronald Eisenberg, and William G. Chadwick, Jr.
Catherine M. Harper, by appointment of the Court, 479 U. S. 928, argued the cause and filed a brief for respondent.*
* Linley E. Pearson, Attorney General of Indiana, and William E. Daily and Lisa M. Paunicka, Deputy Attorneys General, filed a brief for the State of Indiana et al. as amici curiae urging reversal, joined by officials for their respective States as follows: John Van de Kamp, Attorney General of California, John J. Kelly, Chief State’s Attorney for Connecticut, Charles M. Oberly, Attorney General of Delaware, Jim Smith, Attorney General of Florida, Corinne K. A. Watanabe, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Robert T. Stephan, Attorney General of Kansas, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, William L. Webster, Attorney General of Missouri, Travis Medlock, Attorney General of Sou
Chief Justice Rehnquist delivered the opinion of the Court.
In 1975 respondent was convicted of second-degree murder by the Court of Common Pleas of Philadelphia County. She was sentenced to life imprisonment. Her appointed trial attorney appealed the conviction to the Supreme Court of Pennsylvania. That court unanimously affirmed the conviction. 477 Pa. 211, 383 A. 2d 898 (1978). Having failed on direct appeal, respondent, proceeding pro se, sought relief from the trial court under the Pennsylvania Post Conviction Hearing Act. See 42 Pa. Cons. Stat. § 9541 et seq. (1982). She raised the same issues that the Supreme Court of Pennsylvania had rejected on the merits. The trial court denied relief, but the State Supreme Court reversed, holding that respondent was entitled, under state law, to appointed counsel in her postconviction proceedings. 497 Pa. 332, 440 A. 2d 1183 (1981). On remand, the trial court appointed counsel. Counsel reviewed the trial record and consulted with respondent. He concluded that there were no arguable bases for collateral relief. Accordingly, he advised the trial court in writing of his conclusion and requested permission to withdraw. The trial court conducted an independent review of the record and agreed that there were no issues even arguably meritorious. The court thus dismissed the petition for postconviction relief.
Respondent acquired new appointed counsel and pursued an appeal to the Superior Court. Over a dissent, that court concluded that the conduct of the counsel in the trial court’s postconviction proceedings violated respondent’s constitu-
Carolina, Mary Sue Terry, Attorney General of Virginia, Bronson C. Laollette, Attorney General of Wisconsin, and Archie G. McClintock, Attorney General of Wyoming.
Briefs of amici curiae urging affirmance were filed for the American ivil Liberties Union et al. by Larry W. Yackle, Alvin J. Bronstein, wian 0. Berger, David Goldstein, and Stefan Presser; and for the Nawnal Legal Aid and Defender Association by David P. Bergschneider. p. 554tional rights. 330 Pa. Super. 313, 479 A. 2d 568 (1984). The court held that “Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of” Anders v. California, 386 U. S. 738 (1967). 330 Pa. Super., at 318, 479 A. 2d, at 570. In Anders, this Court held that when an attorney appointed to represent an indigent defendant on direct appeal finds a case wholly frivolous:
“[H]e 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. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” 386 U. S., at 744. The Superior Court held that respondent’s postconviction counsel had failed to follow these procedures, and it therefore remanded the case to the Court of Common Pleas for further proceedings. We granted certiorari, 479 U. S. 812 (1986), and we now reverse.
We think that the court below improperly relied on the United States Constitution to extend the Anders procedures to postconviction proceedings. The holding in Anders was based on the underlying constitutional right to appointed counsel established in Douglas v. California, 372 U. S. 353 (1963). Relying on “that equality demanded by the Fourteenth Amendment,” id., at 358, the Douglas Court held that denial of counsel to indigents on first appeal as of right amounted to unconstitutional discrimination against the poor. In Anders, the Court held that in order to protect the “constitutional requirement of substantial equality and fair process” set out in Douglas, appointed appellate counsel must follow the procedures described above when a case appears to be frivolous. 386 U. S., at 744. Of course, Anders did p. 555not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures. Rather, Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.
We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, see Johnson v. Avery, 393 U. S. 483, 488 (1969), and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. Wainwright v. Toma, 455 U. S. 586 (1982); Ross v. Moffitt, 417 U. S. 600 (1974). We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. See Boyd v. Dutton, 405 U. S. 1, 7, n. 2 (1972) (Powell, J., dissenting).
In Ross v. Moffitt, supra, we analyzed the defendant’s claim to appointed counsel on discretionary review under two theories. We concluded that the fundamental fairness exacted by the Due Process Clause did not require appointment of counsel:
“[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a p. 556criminal defendant’s consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U. S. 684 (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way.” 417 U. S., at 610-611.
We also concluded that the equal protection guarantee of the Fourteenth Amendment does not require the appointment of an attorney for an indigent appellant just because an affluent defendant may retain one. “The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Id., at 616.
These considerations apply with even more force to postconviction review. First, we reject respondent’s argument that the Anders procedures should be applied to a state-created right to counsel on postconviction review just because they are applied to the right to counsel on first appeal that this Court established in Douglas. Respondent apparently believes that a “right to counsel” can have only one meaning, no matter what the source of that right. But the fact that the defendant has been afforded assistance of counsel in some form does not end the inquiry for federal constitutional purposes. Rather, it is the source of that right to a lawyer’s assistance, combined with the nature of the proceedings, that controls the constitutional question. In this case, respondent’s access to a lawyer is the result of the State s decision, not the command of the United States Constitution.
We think that the analysis that we followed in Ross forecloses respondent’s constitutional claim. The procedures followed by respondent’s habeas counsel fully comported wit fundamental fairness. Postconviction relief is even further removed from the criminal trial than is discretionary direc p. 557review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Nola, 372 U. S. 391, 423-424 (1963). It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U. S. 317, 323 (1976) (plurality opinion), and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.
Nor was the equal protection guarantee of “meaningful access” violated in this case. By the time respondent presented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylvania. In Ross, we concluded that the defendant’s access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. 417 U. S., at 614-615. We think that the same conclusion necessarily obtains with respect to postconviction review. Since respondent has no underlying constitutional right to appointed counsel in state postconviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.
Respondent relies on Evitts v. Lacey, 469 U. S. 387, 401 (1985), for the proposition that even though the State need not grant a prisoner access to counsel on postconviction review, once it has done so, the Due Process Clause of the Fourteenth Amendment requires that counsel’s actions comport with the procedures enumerated in Anders. In Evitts, the Court held that a State cannot penalize a criminal deendant by dismissing his first appeal as of right when his appointed counsel has failed to follow mandatory appellate rules. In so ruling, the Court rejected the State’s argument hat since it need not provide an appeal in the first place, see p. 558McKane v. Durston, 153 U. S. 684 (1894), it could cut off a defendant’s appeal without running afoul of the Due Process Clause. Noting that “[t]he right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process norms,” 469 U. S., at 400-401, the Court reasoned that “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—and, in particular, in accord with the Due Process Clause,” id., at 401. Respondent argues that by allowing counsel to represent her without complying with Anders, the Court of Common Pleas improperly deprived her of her state-law right to “effective” assistance.
We think that Evitts provides respondent no comfort. Initially, the substantive holding of Evitts—that the State may not cut off a right to appeal because of a lawyer’s ineffectiveness—depends on a constitutional right to appointed counsel that does not exist in state habeas proceedings. More important, however, is the fact that unlike the prisoner in Evitts, who was actually deprived of a state-created right to appeal, respondent here has suffered no deprivation, assuming for the moment that the Due Process Clause is relevant. Cf. Wainright n. Toma, 455 U. S., at 588, n. 4 (per curiam); Polk County v. Dodson, 454 U. S. 312 (1981). The Court of Common Pleas found that respondent’s right to counsel under Pennsylvania law was satisfied by the conduct of her appointed counsel, combined with the court’s independent review of the record. The Superior Court did not disagree with this state-law holding. Rather, it ruled that Anders required even more assistance, as a matter of federal constitutional law. We have rejected that conclusion, and therefore the State’s obligations, as a matter of both federal and state law, have been fulfilled. Since respondent has received exactly that which she is entitled to receive under state law—an independent review of the record by competent counsel—she cannot claim any deprivation without due process.
551 Brennan, J., dissenting
At bottom, the decision below rests on a premise that we are unwilling to accept—that when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume. On the contrary, in this area States have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review. In Pennsylvania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position—at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders. The judgment of the Superior Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Blackmun, concurring in the judgment.
I agree with the Court’s conclusion that the Superior Court erred in its belief that the United States Constitution required the application of the procedures mandated by Anders v. California, 386 U. S. 738 (1967), to this case. In my view, however, on remand the Superior Court should be able to consider whether appointed counsel’s review of respondent’s case was adequate under Pennsylvania law or the Pennsylvania Supreme Court’s remand order.
Justice Brennan, with whom Justice Marshall joins, dissenting.
On respondent’s appeal from denial of state collateral relief, the Pennsylvania Supreme Court held that state law required Dorothy Finley’s counsel to review the record careW, to amend her petition for relief, and to file a brief on ner behalf. On remand, however, her counsel advised the
Brennan, J., dissenting 481 U. S.
trial court (Court of Common Pleas) summarily to dismiss her petition. Today the Court reverses the subsequent determination of the appellate court (Superior Court) that the performance of Dorothy Finley’s trial counsel was deficient for failure to comply with three different sets of requirements: those established by Anders v. California, 386 U. S. 738 (1967), by Commonwealth v. McClendon, 495 Pa. 467, 434 A. 2d 1185 (1981), and by the remand order issued originally by the Pennsylvania Supreme Court.
In Pennsylvania, courts may comply with either the Anders or the McClendon procedures when appointed counsel wishes to withdraw from representation of a petitioner’s collateral attack upon a judgment. 330 Pa. Super. 313, 320-321, 479 A. 2d 568, 571 (1984). The Anders procedures require counsel to perform a conscientious evaluation of the record, to write a brief referring to “arguable” support in the record, and to give notice to the client. The trial court may grant counsel’s request to withdraw after a full examination of the record. Anders v. California, supra, at 744. The McClendon procedures require “an exhaustive examination of the record” by counsel and an “independent determination” by the court that the petition is wholly frivolous. No Anders brief or notice to client is required. 330 Pa. Super., at 320-321, 479 A. 2d, at 571.
In addition to finding that trial counsel complied with neither of these two sets of requirements, the state appellate court found that the lower court failed to comply with the specific requirements of the remand order of the State Supreme Court. In that circumstance, the appellate court decision rested on this independent state ground, and the petition for certiorari should be dismissed as improvidently granted. Moreover, the controversy involving the application of the Anders procedures is not ripe for review. Finally, I believe that counsel’s deficient performance violated Finley’s federal rights to due process and equal protection. I therefore dissent.
551 Brennan, J., dissenting
I
The failure of the trial court to ensure compliance with the State Supreme Court’s instructions on remand is an independent state ground for the appellate court’s decision. After exhausting direct appeals of her criminal convictions, Finley filed a pro se application for collateral relief pursuant to the Pennsylvania Post Conviction Hearing Act, 42 Pa. Cons. Stat. §9541 et seq. (1982) (PCHA). The trial court summarily denied the petition. The Pennsylvania Supreme Court reversed and held that Finley was entitled to appointed counsel if indigent, since the PCHA required the appointment of counsel to assist her in a meaningful manner. 497 Pa. 332, 334, 440 A. 2d 1183, 1184 (1981). The State Supreme Court did not rely on or refer to federal statutory or constitutional law. It stated that the right to counsel guaranteed by the PCHA could be denied “only where a previous PCHA petition involving the same issues has been determined adversely to the petitioner in a proceeding on the PCHA petition. . . .” Ibid, (emphasis added). Finley had not previously filed a PCHA petition and therefore had a right to counsel. The State Supreme Court instructed that appointed counsel was not to limit his or her efforts to the claims raised by Finley, but should “explore legal grounds for complaint, investigate underlying facts” and “articulate claims for relief.” The trial court was further instructed to allow counsel to amend the petition. 497 Pa., at 334-335, 440 A. 2d, at 1184-1185.
On remand, Finley’s counsel failed to meet these requirements. Appointed counsel read only the “Notes of Testimony” of the original trial and failed to indicate to the trial court how he had conducted an exhaustive research of the record. 330 Pa. Super., at 322-323, 479 A. 2d, at 572-573. Instead of filing a brief and amending the complaint, as the remand order required, he simply submitted a “no-merit” let-
Brennan, J., dissenting 481 U. S.
ter describing his limited review, listing the identical issues that were previously presented to the Pennsylvania Supreme Court on both direct appeal and on collateral attack, and stating why he regarded those claims as meritless.1 Finley did not receive advance notice from either the court or her counsel that the latter was filing a letter maintaining that all her claims were without merit. Tr. of Oral Arg. 17. Indeed, there is no evidence that Finley ever received a copy of the letter. The attorney also failed to inform Finley of her right to seek new counsel or to proceed pro se before the trial court. 330 Pa. Super., at 320-321, 323, 479 A. 2d, at 571, 573. After receiving the no-merit letter, the trial court dismissed Finley’s petition without a hearing. New counsel was appointed to represent Finley in the appeal of the dismissal.
The Superior Court reversed, noting that the trial court had failed to follow the required instructions of the State Supreme Court’s remand, which were based on its interpretation of the PCHA. “The [Pennsylvania] Supreme Court remanded, not because it saw any particular merit to the [contentions raised at that time], which were identical to those disposed of earlier in appellant’s direct appeal. . . . The Supreme Court wished to afford appellant the opportunity to amass other issues with arguable merit....” 330 Pa. Super., at 321, 479 A. 2d, at 571-572.
The Superior Court cited to Rule 1504 of the Pennsylvania Rules of Criminal Procedure as a basis for the earlier remand order. That Rule requires counsel to “act as an advocate in fulfilling his role.” 330 Pa. Super., at 321, 479 A. 2d, at 572. The Superior Court stated that Finley’s appellant counsel was able to list several issues “which may have arguable merit” simply by reviewing the “ ‘bare record available in the p. 563551 Brennan, J., dissenting
1
The Superior Court noted that counsel gave an incorrect explanation of one of these two issues in his evaluation of why these issues were meritless. 330 Pa. Super., at 323, n. 4, 479 A. 2d, at 573, n. 4.
Superior Court.’” Id., at 323, 479 A. 2d, at 572-573 (citing Brief for Appellant).2 Thus, the trial court’s failure to require a submitted brief and an amended complaint did not satisfy the mandate of the State Supreme Court that effective counsel be provided for Finley’s first PCHA petition. Since trial counsel had failed to amend the petition or submit a brief, “the proceeding was in fact uncounselled” under Pennsylvania law. Id., at 321, 479 A. 2d, at 572 (citation omitted).
This reliance on state grounds independently and adequately justified the Superior Court’s remand. There is no need for a plain statement indicating the independence of the state grounds since there was no federal law interwoven with this determination. See Michigan v. Long, 463 U. S. 1032, 1041 (1983). Indeed, the Superior Court referred to state law with the very purpose of basing the reversal of the trial court’s decision on grounds independent of both Anders and McClendon. 330 Pa. Super., at 321-322, 479 A. 2d, at 571-572. As a result, the Court has no need to address the issue of what general requirements govern representation in collateral proceedings in Pennsylvania, much less whether Anders is applicable.
II
The Anders issue is not ripe for review for yet another reason. The Superior Court’s decision leaves the trial court discretion on remand to impose the requirements of either Anders or McClendon, so long as it also complies with the requirements imposed by the original remand order by the Pennsylvania Supreme Court. See 330 Pa. Super., at 322,
,, «ey s appellate counsel raised a number of issues of arguable merit at establish Sixth Amendment violations of ineffective assistance of counse • See Brief for Respondent 15, n. 7.
Brennan, J., dissenting 481 U. S.
479 A. 2d, at 571.3 Because the trial court had satisfied neither the requirements of Anders nor McClendon* the Superior Court remanded the case and did not specify which set of procedures the trial court was to follow.5
It is more than conjecture that the Anders requirements may never be imposed in this case, given the alternative availability of McClendon as a source of duties in Pennsylvania. After the present case was decided, the Superior Court held that the McClendon procedures— not the Anders requirements—are required on collateral review. Commonwealth v. McGeth, 347 Pa. Super. 333, 344-345, 500 A. 2d 860, 866 (1985). The Pennsylvania Supreme Court has never held that Anders procedures are required on collateral review. In Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A. 2d 1100, 1101-1102 (1981), the State Supreme Court was equally divided on this issue and therefore affirmed the lower court ruling that the Anders procedures are required
8 The Superior Court acknowledged that Pennsylvania appellate courts do not always require that trial courts follow the Anders procedure, but may allow the appointed counsel to withdraw if the lower court complies with the alternative requirements enunciated by the Pennsylvania Supreme Court in Commonwealth v. McClendon, 495 Pa. 467, 434 A. 2d 1185 (1981). 330 Pa. Super., at 320, 479 A. 2d, at 571 (“[C]ompliance was unnecessary” if counsel conducted an exhaustive examination of the record and the lower court concludes that the petitioner’s claims are completely frivolous).
4 The Superior Court found that the McClendon requirements were not satisfied. “Here, there is no mention of an exhaustive search nor the required finding that the case is wholly frivolous. Counsel must certify to an exhaustive reading and endeavor to uncover all possible issues for review so that the frivolity of the appeal may be determined by the lower court, or ... at the appellate level.” 330 Pa. Super., at 322, 479 A. 2d, at 572 (footnotes omitted).
6 The Superior Court’s instructions to the trial court were as follows.
“Since the procedures utilized herein were defective, they acted to deprive appellant of her right to adequate representation. We remand for an evidentiary hearing on the claims raised in appellant’s brief and any other issues discerned by counsel after an exhaustive search of the recor in accordance with this opinion.” Id., at 323-324, 479 A. 2d, at 573.
551 Brennan, J., dissenting
only on direct appeal from a criminal conviction, and not on collateral review. Because Pennsylvania does not require that Anders be followed on collateral review, there is no occasion for today’s decision.
It is also unnecessary to decide in this case the adequacy of the McClendon procedures. The Commonwealth does not oppose the imposition of the McClendon requirements. Indeed, the Commonwealth approves of the McClendon requirements as a “flexible and enlightened approach.” Brief for Petitioner 18, n. 11. Since it is not clear that the parties in this case have adversarial legal interests, there is no case or controversy regarding the adequacy of McClendon. See Steffel v. Thompson, 415 U. S. 452, 460 (1974).6
In order to avoid issuing an advisory opinion, we should await a final judgment by a Pennsylvania court that requires the imposition of the Anders procedures.7 Since review of the trial court’s eventual decision may be sought later in both the state appellate courts and this Court, we should
'There are several additional reasons why the Court should not decide the validity of the McClendon requirements. First, any holding that determines the applicability of the McClendon requirements to collateral review proceedings is inappropriate because of the lack of a final judgment. Since the trial court has not yet chosen which procedure to follow, there is no final judgment or decree that we can review. Cf. Republic Gas Co. v. Oklahoma, 334 U. S. 62, 69-71 (1948). Second, the validity of the McClendon requirements is not at issue in this case, and is not briefed by the litigants. Third, the McClendon issue is not ripe for review. The trial court may decide not to impose the McClendon requirements, and thus any opinion on this issue is an impermissible advisory opinion.
ouch an approach is consistent with the past practices of the Court:
It has long been this Court’s ‘considered practice not to decide abstract, hypothetical or contingent questions, ... or to decide any constitutional question in advance of the necessity for its decision, ... or to formulate a rule of constitutional law broader than is required by the precise facts o which it is to be applied, ... or to decide any constitutional quesion except with reference to the particular facts to which it is to be applied ....’” Public Workers v. Mitchell, 330 U. S. 75, 90, n. 22 (1947); see also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 510 (1975) (Rehn - quist, J., dissenting).
Brennan, J., dissenting 481 U. S.
avoid prematurely reversing the decision of an inferior state court.8 Thus, I would dismiss the petition as improvidently granted. Ill
I also disagree with the Court’s holding that trial counsel’s abandonment of his client without notice and his advocacy against Finley’s petition did not violate her federal rights to due process and equal protection. The Court denigrates Finley’s right to effective assistance of counsel by noting that this case involves only postconviction review by a trial court. It argues that such review is similar to discretionary appellate review, for which appointment of counsel is not required by the Federal Constitution under Ross v. Moffitt, 417 U. S. 600, 621 (1974). See ante, at 555. This case, however, is readily distinguished from Ross. Under state law, Finley has a mandatory right to effective assistance of counsel, and the trial court is required to review the issues of arguable merit.
In construing the PCHA legislation, the Pennsylvania Supreme Court concluded:
“We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. ...” Commonwealth v. Mitchell, 427 Pa-395, 397, 235 A. 2d 148, 149 (1967).
8 In the instant case, the Commonwealth sought discretionary review of the Superior Court’s decision in the Pennsylvania Supreme Court. Re' view was granted, and the matter was briefed and argued. The court, however, ordered that the appeal be dismissed “as having been improvidently granted.” 510 Pa. 304, 507 A. 2d 822 (1986). Under Pennsylvania law, the State Supreme Court’s refusal to review is not a decision on the merits. See Commonwealth v. Britton, 509 Pa. 620, 506 A. 2d 895 (1986), Dayton n. Dayton, 509 Pa. 632, 506 A. 2d 901 (1986).
551 Brennan, J., dissenting
The Pennsylvania Legislature recognized the importance of collateral review by adopting the PCHA, which requires effective assistance of counsel. 330 Pa. Super., at 321, 479 A. 2d, at 572. An appointed counsel’s determination that a petitioner’s claims have no merit may completely preclude consideration of meritorious claims. Pennsylvania law allows summary dismissal, without appointment of counsel, of petitions which raise claims that were the subject of previous PCHA petitions. Pa. Rule Crim. Proc. 1504.9
The Court justifies its holding on the ground that a State may refuse indigent prisoners any assistance of counsel and therefore has the lesser power to deliver inadequate legal services. But it has long been settled that even if a right to counsel is not required by the Federal Constitution, when a State affords this right it must ensure that it is not withdrawn in a manner inconsistent with equal protection and due process. See Evitts v. Lucey, 469 U. S. 387, 400 (1985); Ross v. Moffitt, supra; Johnson n. Avery, 393 U. S. 483, 488 (1969); Smith v. Bennett, 365 U. S. 708, 713 (1961).
“ ‘Due process’ emphasizes fairness between the State and the individual dealing with the State.” Ross v. Moffitt, supra, at 609. “[F]undamental fairness entitles indigent defendants to ‘an adequate opportunity to present their claims fairly within the adversary system.’ ” Ake v. Oklahoma, 470 U. S. 68, 77 (1985) (citation omitted). In my view, the Federal Constitution requires that the Anders procedures must be followed when a State provides assistance of counsel in collateral proceedings. As the Court previously explained:
“This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant
This right to counsel on collateral review is of special significance to m ey because the Superior Court found several arguably meritorious issues which indicate that effective assistance of counsel was not rendered 0 in the trial that resulted in her conviction and in the handling of the postconviction petition. 330 Pa. Super., at 322-323,479 A. 2d, at 572-573.
Brennan, J., dissenting 481 U. S.
is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled.” Anders v. California, 386 U. S., at 745.
Even if the Anders requirements were not mandated by due process, the performance of Finley’s counsel clearly violated minimal standards of fundamental fairness. At a minimum, due process requires that counsel perform as an advocate. The “very premise of our adversarial system ... is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U. S. 853, 862 (1975). It is fundamentally unfair for appointed counsel to argue against his or her client’s claims without providing notice or an opportunity for that client either to proceed pro se or to seek the advice of another attorney. “It is one thing for a prisoner to be told that appointed counsel sees no way to help him, and quite another for him to feel sandbagged when counsel appointed by one arm of the government seems to be helping another to seal his doom.” Suggs v. United States, 129 U. S. App. D. C. 133, 136, 391 F. 2d 971, 974 (1968). Indeed, even the Commonwealth concedes that “due process requires that the attorney conduct a conscientious and meaningful review of the case and the record.” Tr. of Oral Arg.
14. The Superior Court’s criticism of the trial counsel’s review of the record as insufficient was in those terms, since Finley’s appellate counsel was able to list several issues of p. 569551 Brennan, J., dissenting
arguable merit based on the “bare record available in the Superior Court.” 330 Pa. Super., at 323, 479 A. 2d, at 572.
The performance of Finley’s counsel also violated the Equal Protection Clause. Equal protection demands that States eliminate unfair disparities between classes of individuals. There is no rational basis for assuming that petitions submitted by indigents for collateral review will be less meritorious than those of other defendants. It is hard to believe that retained counsel would file a letter that advocates dismissal of a client’s case without notice to the client and without conducting a conscientious assessment of the record. Since an impoverished prisoner must take whatever a State affords, it is imperative that the efforts of court-appointed counsel be scrutinized so that the indigent receives adequate representation. Equal protection therefore requires the imposition of the Anders requirements. Otherwise, “[t]he indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual,” while a person who can afford it obtains meaningful review. Douglas v. California, 372 U. S. 353, 358 (1963).
IV
The Court transforms Finley’s right to effective counsel into a right to a meaningless ritual.10 In the face of the identification by the Superior Court of three possible means of ensuring adequate representation, the Court was without jurisdiction to render its decision. “Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s refusal to decide cases where there is an adequate and independent state ground.” Michigan v. Long, 463 U. S., at
° I disagree with the Court’s interpretation that the Commonwealth’s obligations, as a matter of state law, were conclusively determined by the
ial court. In my view, therefore, today’s holding does not preclude a etermination of this case under the Commonwealth’s own laws and Constitution. See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (Marshall, J., dissenting).
Stevens, J., dissenting 481 U. S.
1040. I would therefore dismiss the petition as improvidently granted.
I respectfully dissent.
Justice Stevens, dissenting.
Without bothering to identify the basis for federal jurisdiction in this case, the Court blithely assumes that the decision below does not rest on an independent and adequate state ground. I cannot agree. State procedural rules are often patterned after federal precedents, but they are, nonetheless, rules of state law. In this case, the Pennsylvania Superior Court explicitly stated that it was applying “Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal.” 330 Pa. Super. 313, 318, 479 A. 2d 568, 570 (1984) (emphasis added). As for federal precedents, the court simply noted that state law in the area was “derived from” this Court’s 1967 decision in Anders v. California, 386 U. S. 738. Thus, I believe that the “plain statement” test of Michigan v. Long, 463 U. S. 1032,1037-1044 (1983), is satisfied, and that the decision on review rested on independent and adequate state grounds. Moreover, it seems rather clear to me, for the reasons stated in Part I of Justice Brennan’s dissent, that the decision below did not rest alone on that portion of the discussion which could conceivably be considered to be based on Anders. See ante, at 561-563. In either event, there is no basis for concluding that the Pennsylvania Superior Court s decision to remand this case stemmed from its belief that the Federal Constitution required it to do so.
But even if I believed that the court relied on some federal precedents, and that the sacrosanct “plain statement” were missing, I would still conclude that this Court lacks jurisdiction over the case. It is unrealistic—and quite unfair—to expect the judges in the Philadelphia office of the Superior Court of Pennsylvania to acquire and retain familiarity with this Court’s jurisprudence concerning the intricacies of our own jurisdiction. The occasions on which the decisions oi p. 571551 Stevens, J., dissenting
the judges in that office will be subject to direct review by the Supreme Court of the United States are far too rare to make it appropriate for them to become familiar with the Michigan v. Long presumption. It is denigrating enough to require the justices of the 50 State Supreme Courts to include such a statement in their decisions, without demanding the same of the 716 state appellate judges or all 20,000 state-court judges who decide cases that could conceivably be reviewed by this Court. *
Before the Commonwealth of Pennsylvania petitioned this Court for a writ of certiorari, it sought review of the Superior Court’s judgment in the Supreme Court of Pennsylvania. Had it not done so, this Court could not have accepted jurisdiction of the petition because cases originating in a state court may not be reviewed here unless the judgment was “rendered by the highest court of a State in which a decision could be had.” 28 U. S. C. § 1257. When the Pennsylvania Supreme Court dismissed the Commonwealth’s appeal as improvidently granted, it did not accompany its order with any statement of reasons. We thus have no way of knowing whether its action was based on a correct interpretation of Pennsylvania law or an incorrect interpretation of federal law.
In my opinion, due respect for the courts of the States, as well as our separate interest in the “avoidance of rendering advisory opinions,” Michigan v. Long, supra, at 1040, strongly favors the former presumption. I would not take yet another step down the jurisdiction-expanding path marked by Michigan v. Long, see Delaware v. Van Arsdall,
*
These figures are based on 1984 statistics as reported in two recent publications. See Conference of State Court Administrators and the Court Statistics and Information Project of the National Center for State ourts, R. Roper, M. Elsner, & V. Flango, 1984 State Appellate Court urisdiction Guide for Statistical Reporting 5-9 (1985) (figure for appellate Ju ges); National Center for State Courts, State Court Caseload Statistics: Annual Report 1984, pp. 195-248 (June 1986) (figure for all judges).
Stevens, J., dissenting 481 U. S.
475 U. S. 673, 689 (1986) (Stevens, J., dissenting). Instead, I would dismiss the writ for want of jurisdiction.
I respectfully dissent.