text:
    MEYER, COLORADO SECRETARY OF STATE, et al. v. GRANT et al.
    No. 87-920.
    Argued April 25, 1988
    Decided June 6, 1988

      Stevens, J., delivered the opinion for a unanimous Court.

      Maurice G. Knaizer, First Assistant Attorney General of Colorado, argued the cause for appellants. With him on the briefs were Duane Woodard, Attorney General, pro se, Richard H. Forman, Solicitor General, and Charles B. Howe and Billy J. Shuman, Deputy Attorneys General.

      William C. Danks argued the cause and filed a brief for appellees.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by James J. Sandman, Steven R. Shapiro, and John A. Powell; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.

   Justice Stevens

delivered the opinion of the Court.

In Colorado the proponents of a new law, or an amendment to the State Constitution, may have their proposal placed on the ballot at a general election if they can obtain enough signatures of qualified voters on an “initiative petition” within a 6-month period. One section of the state law regulating the initiative process makes it a felony to pay petition circu-lators. The question in this case is whether that provision is unconstitutional. The Court of Appeals for the Tenth Circuit, sitting en banc, held that the statute abridged appellees’ right to engage in political speech and therefore violated the First and Fourteenth Amendments to the Federal Constitution. We agree.

I

Colorado is one of several States that permits its citizens to place propositions on the ballot through an initiative process. Colo. Const., Art. V, §1; Colo. Rev. Stat. §§1-40-101 to 1-40-119 (1980 and Supp. 1987). Under Colorado law, proponents of an initiative measure must submit the measure to the State Legislative Council and the Legislative Drafting Office for review and comment. The draft is then submitted to a three-member title board, which prepares a title, submission clause, and summary. After approval of the title, submission clause, and summary, the proponents of the measure then have six months to obtain the necessary signatures, which must be in an amount equal to at least five percent of the total number of voters who cast votes for all candidates for the Office of Secretary of State at the last preceding general election. If the signature requirements are met, the petitions may be filed with the Secretary of State, and the measure will appear on the ballot at the next general election. Colo. Rev. Stat. §§1-40-101 to 1-40-105 (1980 and Supp. 1987).

State law requires that the persons who circulate the approved drafts of the petitions for signature be registered voters. Colo. Const., Art. V, §1(6). Before the signed petitions are filed with the Secretary of State, the circulators must sign affidavits attesting that each signature is the signature of the person whose name it purports to be and that, to the best of their knowledge and belief, each person signing the petition is a registered voter. Colo. Rev. Stat. § 1-40-109 (Supp. 1987). The payment of petition circulators is punished as a felony. Colo. Rev. Stat. § 1-40-110 (1980), n. 1, supra.

Appellees are proponents of an amendment to the Colorado Constitution that would remove motor carriers from the jurisdiction of the Colorado Public Utilities Commission. In early 1984 they obtained approval of a title, submission clause, and summary for a measure proposing the amendment and began the process of obtaining the 46,737 signatures necessary to have the proposal appear on the November 1984 ballot. Based on their own experience as petition circulators, as well as that of other unpaid circulators, appel-lees concluded that they would need the assistance of paid personnel to obtain the required number of signatures within the allotted time. They then brought this action under 42 U. S. C. § 1983 against the Secretary of State and the Attorney General of Colorado seeking a declaration that the statutory prohibition against the use of paid circulators violates their rights under the First Amendment.

After a brief trial, the District Judge entered judgment upholding the statute on alternative grounds. First, he concluded that the prohibition against the use of paid circula-tors did not burden appellees’ First Amendment rights because it did not place any restraint on their own expression or measurably impair efforts to place initiatives on the ballot. The restriction on their ability to hire paid circulators to speak for them was not significant because they remained ,free to use their money to employ other spokesmen who could advertise their cause. Second, even assuming, arguendo, that the statute burdened appellees’ right to engage in political speech, the District Judge concluded that the burden was justified by the State’s interests in (a) making sure that an initiative measure has a sufficiently broad base to warrant its placement on the ballot, and (b) protecting the integrity of the initiative process by eliminating a temptation to pad petitions.

A divided panel of the Court of Appeals affirmed for the reasons stated by the District Court. After granting rehearing en banc, however, the court reversed. The en banc majority concluded that the record demonstrated that petition circulators engage in the communication of ideas while they are obtaining signatures and that the available pool of circu-lators is necessarily smaller if only volunteers can be used.

“Thus, the effect of the statute’s absolute ban on compensation of solicitors is clear. It impedes the sponsors’ opportunity to disseminate their views to the public. It curtails the discussion of issues that normally accompanies the circulation of initiative petitions. And it shrinks the size of the audience that can be reached.... In short, like the campaign expenditure limitations struck down in Buckley, the Colorado statute imposes a direct restriction which ‘necessarily reduces the quantity of expression _’ Buckley [v. Valeo], 424 U. S. [1,] 19 [(1976)].” 828 F. 2d 1446, 1453-1454 (CA10 1987) (citations omitted).

The Court of Appeals then rejected the State’s asserted justifications for the ban. It first rejected the suggestion that the ban was necessary either to prevent fraud or to protect the public from circulators that might be too persuasive:

“The First Amendment is a value-free provision whose protection is not dependent on ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’ NAACP v. Button, [371 U. S. 415, 445 (1963)]. ‘The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind .... In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.’ Thomas v. Collins, [323 U. S. 516, 545 (1945)] (Jackson, J., concurring).” Id., at 1455.

The court then rejected the suggestion that the ban was needed to assure that the initiative had a broad base of public support because, in the court’s view, that interest was adequately protected by the requirement that the petition be signed by five percent of the State’s eligible voters. Finally, the Court of Appeals rejected an argument advanced by a dissenting judge that since Colorado had no obligation to afford its citizens an initiative procedure, it could impose this condition on its use. Having decided to confer the right, the State was obligated to do so in a manner consistent with the Constitution because, unlike Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328 (1986), which involved only commercial speech, this case involves “core political speech.”

II

We fully agree with the Court of Appeals’ conclusion that this case involves a limitation on political expression subject to exacting scrutiny. Buckley v. Valeo, 424 U. S. 1, 45 (1976). The First Amendment provides that Congress “shall make no law . . . abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment makes that prohibition applicable to the State of Colorado. As we explained in Thornhill v. Alabama, 310 U. S. 88, 95 (1940), “[t]he freedom of speech and of the press, which are secured by the First Amendment against abridgment by the United States, are/arhong the fundamental personal rights and liberties which' are secured to all persons by the Fourteenth Amendment against abridgment by a State.”

Unquestionably, whether the trucking industry should be deregulated in Colorado is a matter of societal concern that appellees have a right to discuss publicly without risking criminal sanctions. “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Id., at 101-102. The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U. S. 476, 484 (1957). Appellees seek by petition to achieve political change in Colorado; their right freely to engage in discussions concerning the need for that change is guarded by the First Amendment.

The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will át least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive- communication concerning political change that is appropriately described as “core political speech.”

The refusal to permit appellees to pay petition circulators restricts political expression in two ways: First, it limits the number of voices who will convey appellees’ message and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion. The Colorado Supreme Court has itself recognized that the prohibition against the use of paid circulators has the inevitable effect of reducing the total quantum of speech on a public issue. When called upon to consider the constitutionality of the statute at issue here in another context in Urevich v. Woodard, 667 P. 2d 760, 763 (1983), that court described the burden the statute imposes on First Amendment expression:

“As mentioned previously, statutes that limit the power of the people to initiate legislation are to be closely scrutinized and narrowly construed. That the statute in question acts as a limitation on ACORN’s ability to circulate petitions cannot be doubted. We can take judicial notice of the fact that it is often more difficult to get people to work without compensation than it is to get them to work for pay. As the dissent in State v. Conifer Enterprises, Inc., 82 Wash. 2d 94, [104,] 508 P. 2d 149[, 155] (1973) (Rosellini, J., dissenting), observed:
“ ‘The securing of sufficient signatures to place an initiative measure on the ballot is no small undertaking. Unless the proponents of a measure can find a layge number of volunteers, they must hire persons to solicit signatures or abandon the project. I think we can take judicial notice of the fact that the solicitation of signatures on petitions is work. It is time-consuming and it is tiresome — so much so that it seems that few but the young have the strength, the ardor and the stamina to engage in it, unless, of course, there is some remuneration.’”

Appellants argue that even if the statute imposes some limitation on First Amendment expression, the burden is permissible because other avenues of expression remain open to appellees and because the State has the authority to impose limitations on the scope of the state-created right to legislate by initiative. Neither of these arguments persuades us that the burden imposed on appellees’ First Amendment rights is acceptable.

That appellees remain free to employ other means to disseminate their ideas does not take their speech through petition circulators outside the bounds of First Amendment protection. Colorado’s prohibition of paid petition circulators restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication. That it leaves open “more burdensome” avenues of communication, does not relieve its burden on First Amendment expression. FEC v. Massachusetts Citizens For Life, Inc., 479 U. S. 238 (1986). Cf. Citizens Against Rent Control v. Berkeley, 454 U. S. 290, 296, 299 (1981). The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.

Relying on Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328 (1986), Colorado contends that because the power of the initiative is a state-created right, it is free to impose limitations on the exercise of that right. That reliance is misplaced. In Posadas the Court concluded that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling. ” Id., at 345-346. The Court of Appeals quite properly pointed out the logical flaw in Colorado’s attempt to draw an analogy between the present case and Posadas. The decision in Posadas does not suggest that “the power to ban casino gambling entirely would include the power to ban public discussion of legislative proposals regarding the legalization and advertising of casino gambling.” 828 F. 2d, at 1456. Thus it does not support the position that the power to ban initiatives entirely includes the power to limit discussion of political issues raised in initiative petitions. And, as the Court of Appeals further observed:

“Posadas is inapplicable to the present case for a more fundamental reason — the speech restricted in Posadas was merely ‘commercial speech which does “no more than propose a commercial transaction ....”’ Posadas, [478 U. S., at 340] (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 762 (1976)). . . . Here, by contrast, the speech at issue is ‘at the core of our electoral process and of the First Amendment freedoms,’ Buckley, 424 U. S., at 39 (quoting Williams v. Rhodes, 393 U. S. 23, 32 (1968))— an area of public policy where protection of robust discussion is at its zenith.” Id., at 1456-1457.

We agree with the Court of Appeals’ conclusion that the statute trenches upon an area in which the importance of First Amendment protections is “at its zenith.” For that reason the burden that Colorado must overcome to justify this criminal law is well-nigh insurmountable.

HH t-H 1 — I

We are not persuaded by the State s arguments that the prohibition is justified by its interest in making sure that an initiative has sufficient grass roots support to be placed on the ballot, or by its interest in protecting the integrity of the initiative process. As the Court of Appeals correctly held, the former interest is adequately protected by the requirement that no initiative proposal may be placed on the ballot unless the required number of signatures has been obtained. Id., at 1455.

The State’s interest in protecting the integrity of the initiative process does not justify the prohibition because the State has failed to demonstrate that it is necessary to burden appel-lees’ ability to communicate their message in order to meet its concerns. The Attorney General has argued that the petition circulator has the duty to verify the authenticity of signatures on the petition and that compensation might provide the circulator with a temptation to disregard that duty. No evidence has been offered to support that speculation, however, and we are not prepared to assume that a professional circulator — whose qualifications for similar future assignments may well depend on a reputation for competence and integrity — is any more likely to accept false signatures than a volunteer who is motivated entirely by an interest in having the proposition placed on the ballot.

Other provisions of the Colorado statute deal expressly with the potential danger that circulators might be tempted to pad their petitions with false signatures. It is a crime to forge a signature on a petition, Colo. Rev. Stat. § 1-13-106 (1980), to make false or misleading statements relating to a petition, Colo. Rev. Stat. § 1-40-119 (Supp. 1987), or to pay someone to sign a petition, Colo. Rev. Stat. §1-40-110 (1980). Further, the top of each page of the petition must bear a statement printed in red ink warning potential signatories that it is a felony to forge a signature on a petition or to sign the petition when not qualified to vote and admonishing signatories not to sign the petition unless they have read and understand the proposed initiative. These provisions seem adequate to the task of minimizing the risk of improper conduct in the circulation of a petition, especially since the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting. Cf. First National Bank of Boston v. Bellotti, 435 U. S. 765, 790 (1978) (“The risk of corruption perceived in cases involving candidate elections . . . simply is not present in a popular vote on a public issue”).

“[LJegislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment.” Buckley v. Valeo, 424 U. S., at 50. That principle applies equally to “the discussion of political policy generally or advocacy of the passage or defeat of legislation.” Id., at 48. The Colorado statute prohibiting the payment of petition circulators imposes a burden on political expression that the State has failed to justify. The Court of Appeals correctly held that the statute violates the First and Fourteenth Amendments. Its judgment is therefore affirmed.

It is so ordered.

       Colorado Rev. Stat. § 1-40-110 (1980) provides:
      “Any person, corporation, or association of persons who directly or indirectly pays to or receives from or agrees to pay to or receive from any other person, corporation, or association of persons any money or other thing of value in consideration of or as an inducement to the circulation of an initiative or referendum petition or in consideration of or as an inducement to the signing of any such petition commits a class 5 felony and shall be punished as provided in section 18-1-105, C. R. S. (1973).”

       Although the November 1984 election in which appellees had first hoped to present their proposal to the citizens of Colorado is long past, we note that this action is not moot. Neither party suggests that the action is moot. Rather, both assert that the controversy between them is one capable of repetition, yet evading review.
      We may exercise jurisdiction over this action if “ ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.’” Murphy v. Hunt, 455 U. S. 478, 482 (1982) (per curiam.), quoting Weinstein
        v. Bradford, 423 U. S. 147, 149 (1975) (per curiam). We are satisfied that both elements are present in this ease. Colorado grants the proponents of an initiative only six months in which to obtain the necessary signatures. The likelihood that a proponent could obtain a favorable ruling within that time, much less act upon such a ruling in time to obtain the needed signatures, is slim at best. Further, the initiative sought by appellees has not been enacted. Appellees, however, continue to advocate its adoption and plan future attempts to obtain the signatures necessary to place the issue on the ballot. Tr. of Oral Arg. 37. Consequently, it is reasonable to expect that the same controversy will recur between these two parties, yet evade meaningful judicial review. See First National Bank of Boston v. Bellotti, 435 U. S. 765, 774-775 (1978); Moore v. Ogilvie, 394 U. S. 814 (1969).

       In support of its conclusion that the prohibition against the use of paid circulators did not inhibit the placement of initiative measures on the general ballot, the District Court compared Colorado’s experience with that of 20 States which have an initiative process but do not prohibit paid circu-lators. It noted that since 1910, Colorado has ranked fourth in the total number of initiatives placed on the ballot. This statistic, however, does not reject the possibility that even more petitions would have been successful if paid circulators had been available, or, more narrowly, that these appellees would have had greater success if they had been able to hire extra help. As the District Court itself noted, “the evidence indicates [appellees’] purposes would be enhanced if the corps of volunteers could be augmented by a cadre of paid, workers.” 741 F. 2d 1210, 1212 (CA10 1984) (Appendix).

       The record in this case demonstrates that the circulation of appellees’ petition involved political speech. Paul Grant, one of the appellees, testified about the nature of his conversations with voters in an effort to get them to sign the petition:
      “[T]he way we go about soliciting signatures is that you ask the person— first of all, you interrupt the person in their walk or whatever they are doing. You intrude upon them and ask them, “Are you a registered voter?
      “If you get a yes, then you tell the person your purpose, that you are circulating a petition to qualify the issue on the ballot in November, and tell them what about, and they say, ‘Please let me know a little bit more.’ Typically, that takes maybe a minute or two, the process of explaining to the persons that you are trying to put the initiative on the ballot to exempt Colorado transportation from [State Public Utilities Commission] regulations.
      “Then you ask the person if they will sign your petition. If they hesitate, you try to come up with additional arguments to get them to sign.
      “[We try] to explain the not just deregulation in this industry, that it would free up to industry from being cartelized, allowing freedom from moral choices, price competition for the first time, lowering price costs, which we estimate prices in Colorado to be $150 million a year in monopoly benefits. We have tried to convey the unfairness and injustice of the existing system, where some businesses are denied to go into business simply to protect the profits of existing companies.
      “We tried to convey the unfairness of the existing system, which has denied individuals the right to start their own businesses. In many cases, individuals have asked for an authority and been turned down because huge corporate organizations have opposed them.” 2 Record 10-11.
      This testimony provides an example of advocacy of political reform that falls squarely within the protections of the First Amendment.

       Our recognition that the solicitation of signatures for a petition involves protected speech follows from our recognition in Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), that the solicitation of charitable contributions often involves speech protected by the First Amendment and that any attempt to regulate solicitation would necessarily infringe that speech:
      “Prior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes —that are within the protection of the First Amendment. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease.” Id., at 632.

       Paul Grant testified that compensation resulted in more people being “able and willing” to circulate petitions. 2 Record 19-20. As he succinctly concluded: “[M]oney either enables people to forego leaving a job, or enables them to have a job.” Ibid.

       Colorado also seems to suggest that it is permissible to mute the voices of those who can afford to pay petition circulators. See Brief for Appellants 17. “But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Buckley v. Valeo, 424 U. S. 1, 48-49 (1976). The concern that persons who can pay petition cir-culators may succeed in getting measures on the ballot when they might otherwise have failed cannot defeat First Amendment rights. As we said in First National Bank of Boston v. Bellotti, 435 U. S., at 790-791, paid advocacy “may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it.... ‘[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . .’ Buckley, 424 U. S., at 48-49. . . . [T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.” Cf. Brown v. Hartlage, 456 U. S. 45, 60 (1982) (“The State’s fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech”).

       Section 1-40-106 provides in part:
      “(1) At the top of each page of every initiative or referendum petition shall be printed, in plain red letters no smaller than the impression of ten-point, boldface type, the following:
      “WARNING
      “IT IS A FELONY:
      “For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to sign such petition when not a qualified elector.
      “DO NOT SIGN THIS PETITION UNLESS YOU ARE A
      “QUALIFIED ELECTOR
      “TO BE A QUALIFIED ELECTOR, YOU MUST BE:
      “(a) At least eighteen years of age.
      “(b) A citizen of the United States.
      “(c) A resident of the state of Colorado and have resided in the state at least thirty-two days.
      “(d) A resident of the precinct in which you live for at least thirty-two days.
      “Do not sign this petition unless you have read or had read to you the proposed initiative or referred measure or the summary of an initiated measure in its entirety and understand its meaning.”


source: Caselaw Access Project

author:
Justice Stevens
      Justice Brennan,

license: Public Domain

text:
    McCOY v. COURT OF APPEALS OF WISCONSIN, DISTRICT 1
    No. 87-5002.
    Argued January 20, 1988
    Decided June 6, 1988

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. BREnnan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 445. Kennedy, J., took no part in the consideration or decision of the case.

      Louis B. Butler, Jr., argued the cause and filed briefs for appellant.

      Stephen W. Kleinmaier, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief was Donald J. Hanaway, Attorney General.

        Kim Robert Fawcett, John A. Powell, Steven R. Shapiro, and Larry W. Yackle filed a brief for the National Legal Aid and Defender Association et al. as amici curiae.

   Justice Stevens

delivered the opinion of the Court.

Like Anders v. California, 386 U. S. 738 (1967), this case concerns the scope of court-appointed appellate counsel’s duty to an indigent client after counsel has conscientiously determined that the indigent’s appeal is wholly frivolous. In Anders, we held that counsel could not withdraw by simply advising the court of his or her conclusion, but must include with the request to withdraw “a brief referring to anything in the record that might arguably support the appeal.” Id., at 744. The Wisconsin Supreme Court has adopted a Rule that requires such a brief also to include “a discussion of why the issue lacks merit.” Appellant challenged the constitutionality of the Rule in the Wisconsin Supreme Court. Over the dissent of three of its justices, the court upheld the Rule, rejecting appellant’s contentions that the Rule is inconsistent with Anders and that it forces counsel to violate his or her client’s Sixth Amendment rights. Wisconsin ex rel. McCoy v. Wisconsin Court of Appeals, 137 Wis. 2d 90, 403 N. W. 2d 449 (1987). We noted probable jurisdiction, 484 U. S. 813 (1987), and now affirm.

I

Appellant is indigent. A Wisconsin trial judge found him guilty of abduction and sexual assault and sentenced him to prison for 12 years. He has filed an appeal from that conviction and an attorney has been appointed to represent him. After studying the case, the attorney advised him that further appellate proceedings would be completely useless and that he had three options: He could voluntarily dismiss the appeal; he could go forward without a lawyer; or he could authorize the attorney to file a brief that would present the strongest arguments the lawyer could make in support of the appeal but would also advise the court of the lawyer’s conclusion that the appeal is frivolous. Appellant selected the third option.

Appellant’s counsel then prepared a brief that can fairly be characterized as schizophrenic. In his role as an advocate for appellant, counsel stated the facts, advanced four arguments for reversal, and prayed that the conviction be set aside. In his role as an officer of the court, counsel stated that further appellate proceedings on behalf of his client “would be frivolous and without any arguable merit,” App. 14, and prayed that he be permitted to withdraw, id., at 27. Thus, in the same document, the lawyer purported to maintain that there were arguments warranting a reversal and also that those arguments were wholly without merit. The brief did not contain an explanation of the reasons for counsel’s conclusion. Instead, counsel explained why he believed that it would be both unethical and contrary to Anders to discuss the reasons why the appeal lacked merit. Because the brief did not comply with the discussion requirement in Rule 809.32(1), the court ordered it stricken and directed counsel to submit a conforming brief within 15 days. App. 30.

Appellant’s counsel did not comply with that order. Instead, after unsuccessfully attempting to obtain a ruling on the constitutionality of the Rule in the intermediate appellate court, he filed an original action in the Wisconsin Supreme Court seeking to have the discussion requirement in Rule 809.32(1) declared unconstitutional. The Supreme Court agreed with portions of appellant’s argument, but rejected his ultimate conclusion. The court reaffirmed its acceptance of the principle that appointed counsel have the same obligations as paid counsel to provide their clients with adequate representation, and it agreed that the Anders opinion had not sanctioned a discussion requirement. Moreover, the court also agreed that it is ultimately the responsibility of the court — and not of counsel — to decide whether an appeal is wholly frivolous. It explained, however, that the discussion requirement in the Wisconsin Rule assists the court in making that determination:

“When the court has before it a reasoned summary of the law militating against further appellate proceedings, it can be assured that the attorney has made an inquiry into the relative merits of the appeal and that the attorney’s withdrawal request is valid and grounded in fact and in the law.” 137 Wis. 2d, at 101, 403 N. W. 2d, at 454.

The court noted that because its procedures for handling frivolous appeals were far removed from the simple statement of counsel’s conclusion that this Court condemned in Anders, they did not raise the “quality and equality of attorney representation” concerns that underlay our decision in Anders. 137 Wis. 2d, at 101-102, 403 N. W. 2d, at 454. The court also pointed out that the Rule does not require an attorney to argue against his or her client; rather it merely requires the attorney to fulfill his or her duty to the courts. Accordingly, the court upheld the Rule.

The dissenting justices expressed the view that the discussion requirement was not necessary and that it improperly required defense counsel to assume the role of either an ami-cus curiae, or even an adversary, instead of acting exclusively as an advocate for the client.

In this Court appellant makes two basic attacks on the Rule. He argues that it discriminates against the indigent appellant and that it violates his right to effective representation by an advocate. Both arguments rest largely on the assumption that retained counsel will seldom, if ever, advise an appellate court that he or she has concluded that a client’s appeal is meritless, or provide the court with a discussion of the reasons supporting such a conclusion. In determining whether Wisconsin’s Rule requiring appointed counsel to provide an appellate court with such advice is constitutional, it is appropriate to begin by restating certain propositions established by our previous decisions concerning the right to counsel and the obligations of both paid and appointed counsel.

r-H W

A State s enforcement of its criminal laws must comply with the principles of substantial equality and fair procedure that are embodied in the Fourteenth Amendment. The Sixth Amendment’s requirement that “the accused shall enjoy the right to have the Assistance of Counsel for his defense” is therefore binding on the States. Gideon v. Wainwright, 372 U. S. 335 (1963). As we explained in Gideon, “in our adversary system of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id., at 344. It is therefore settled law that an indigent defendant has the same right to effective representation by an active advocate as a defendant who can afford to retain counsel of his or her choice. The “guiding hand of counsel,” see Powell v. Alabama, 287 U. S. 45, 68-69 (1932), is essential for the evaluation of the prosecution’s case, the determination of trial strategy, the possible negotiation of a plea bargain and, if the case goes to trial, making sure that the prosecution can prove the State’s case with evidence that was lawfully obtained and may lawfully be considered by the trier of fact.

At the trial level, defense counsel’s view of the merits of his or her client’s case never gives rise to a duty to withdraw. That a defense lawyer may be convinced before trial that any defense is wholly frivolous does not qualify his or her duty to the client or to the court. Ethical considerations and rules of court prevent counsel from making dilatory motions, adducing inadmissible or perjured evidence, or advancing frivolous or improper arguments, but those constraints do not qualify the lawyer’s obligation to maintain that the stigma of guilt may not attach to the client until the presumption of innocence has been overcome by proof beyond a reasonable doubt.

After a judgment of conviction has been entered, however, the defendant is no longer protected by the presumption of innocence. If a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel, but he must assume the burden of convincing an appellate tribunal that reversible error occurred at trial. Although trial counsel may remain silent and force the prosecutor to prove every element of the offense, counsel for an appellant cannot serve the client’s interest without asserting specific grounds for reversal. In so doing, however, the lawyer may not ignore his or her professional obligations. Neither paid nor appointed counsel may deliberately mislead the court with respect to either the facts or the law, or consume the time and the energies of the court or the opposing party by advancing frivolous arguments. An attorney, whether appointed or paid, is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.

“A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court, so if he believes in good faith that there are no other arguments that he can make on his client’s behalf he is honor-bound to so advise the court and seek leave to withdraw as counsel.” United States v. Edwards, 111 F. 2d 364, 365 (CA7 1985).

When retained counsel concludes that an appeal would be frivolous, he or she has a duty to advise the client that it would be a waste of money to prosecute the appeal and that it would be unethical for the lawyer to go forward with it. When appointed counsel conies to the same conclusion, the same duty to withdraw arises. Appointed counsel, however, is presented with a dilemma because withdrawal is not possible without leave of court, and advising the court of counsel’s opinion that the appeal is frivolous would appear to conflict with the advocate’s duty to the client. It is well settled, however, that this dilemma must be resolved by informing the court of counsel’s conclusion. As we stated three decades ago:

“If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.” Ellis v. United States, 356 U. S. 674, 675 (1958).

We reaffirmed this basic proposition in Anders. Moreover, the fact that an appointed appellate lawyer may find it necessary to file a motion to withdraw because he or she has concluded that an appeal is frivolous does not indicate that the indigent defendant has received less effective representation than the affluent. We categorically rejected that suggestion in Polk County v. Dodson, 454 U. S. 312 (1981). As Justice Powell explained in his opinion for the Court:

“Dodson’s argument assumes that a private lawyer would have borne no professional obligation to refuse to prosecute a frivolous appeal. This is error. In claiming that a public defender is peculiarly subject to divided loyalties, Dodson confuses a lawyer’s ethical obligations to the judicial system with an allegiance to the adversary interests of the State in a criminal prosecution. Although a defense attorney has a duty to advance all col-orable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals. Dodson has no legitimate complaint that his lawyer refused to do so.” Id., at 323 (footnote omitted).

In Anders we squarely held that the principle of substantial equality is not compromised when appointed counsel files a “no merit” brief even though such briefs are seldom, if ever, filed by retained counsel. As we stated in Douglas v. California, 372 U. S. 353, 357 (1963), “[ajbsolute equality is not required.”

The principle of substantial equality does, however, require that appointed counsel make the same diligent and thorough evaluation of the case as a retained lawyer before concluding that an appeal is frivolous. Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. The appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In preparing and evaluating the case, and in advising the client as to the prospects for success, counsel must consistently serve the client’s interest to the best of his or her ability. Only after such an evaluation has led counsel to the conclusion that the appeal is “wholly frivolous” is counsel justified in making a motion to withdraw. This is the central teaching of Anders.

In Anders we held that a motion to withdraw must be accompanied by “a brief referring to anything in the record that might arguably support the appeal.” 386 U. S., at 744. That requirement was designed to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability. The Anders requirement assures that indigent defendants have the benefit of what wealthy defendants are able to acquire by purchase — a diligent and thorough review of the record and an identification of any arguable issues revealed by that review. Thus, the Anders brief assists the court in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.

I — » h-J HH

The question whether the Wisconsin Rule is consistent with our holding in Anders must be answered in light of the Wisconsin Supreme Court’s explanation of the Rule’s requirements:

“We interpret the discussion rule to require a statement of reasons why the appeal lacks merit which might include, for example, a brief summary of any case or statutory authority which appears to support the attorney’s conclusions, or a synopsis of those facts in the record which might compel reaching that same result. We do not contemplate the discussion rule to require an attorney to engage in a protracted argument in favor of the conclusion reached; rather, we view the rule as an attempt to provide the court with ‘notice’ that there are facts on record or cases or statutes on point which would seem to compel a conclusion of no merit.” 137 Wis. 2d, at 100, 403 N. W. 2d, at 454.

As so construed, the Rule appears to require that the attorney cite the principal cases and statutes and the facts in the record that support the conclusion that the appeal is merit-less. The Rule also requires a brief statement of why these citations lead the attorney to believe the appeal lacks merit. The former requirement is, as far as the Federal Constitution is concerned, entirely unobjectionable. Attorneys are obligated to act with candor in presenting claims for judicial resolution. The rules of ethics already prescribe circumstances in which an attorney must disclose facts and law contrary to his or her client’s interests. That the Wisconsin Rule requires counsel also to do so when seeking to withdraw on the ground that the appeal is frivolous does not deny the client effective assistance of counsel any more than the rules of ethics do.

The aspect of the Rule that has provoked the concern of counsel for petitioner and other members of the defense bar is that which calls for the attorney to reveal the basis for his or her judgment. Although neither appellant nor amici supporting appellant debate the propriety of allowing defense counsel to satisfy his or her ethical obligations to the court by asserting his or her belief that the appeal is frivolous and seeking to withdraw, they do contend that requiring the attorney to assert the basis for this conclusion violates the client’s Sixth and Fourteenth Amendment rights and is contrary to Anders. We disagree.

The Wisconsin Rule is fully consistent with the objectives that are served by requiring that a motion to withdraw be accompanied by a brief referring to all claims that might arguably support the appeal. Unlike the typical advocate’s brief in a criminal appeal, which has as its sole purpose the persuasion of the court to grant relief to the defendant, the Anders brief is designed to assure the court that the indigent defendant’s constitutional rights have not been violated. To satisfy federal constitutional concerns, an appellate court faces two interrelated tasks as it rules on counsel’s motion to withdraw. First, it must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal. Second, it must determine whether counsel has correctly concluded that the appeal is frivolous. Because the mere statement of such a conclusion by counsel in Anders was insufficient to allow the court to make the required determinations, we held that the attorney was required to submit for the court’s consideration references to anything in the record that might arguably support the appeal. Wisconsin’s Rule merely requires that the attorney go one step further. Instead of relying on an unexplained assumption that the attorney has discovered law or facts that completely refute the arguments identified in the brief, the Wisconsin court requires additional evidence of counsel’s diligence. This requirement furthers the same interests that are served by the minimum requirements of Anders. Because counsel may discover previously unrecognized aspects of the law in the process of preparing a written explanation for his or her conclusion, the discussion requirement provides an additional safeguard against mistaken conclusions by counsel that the strongest arguments he or she can find are frivolous. Just like the references to favorable aspects of the record required by Anders, the discussion requirement may forestall some motions to withdraw and will assist the court in passing on the soundness of the lawyer’s conclusion that the appeal is frivolous.

The Rule does not place counsel in the role of amicus curiae. In Anders petitioner argued that California’s rule allowing counsel to withdraw on the basis of a conclusory statement that the appeal was meritless posed the danger that some counsel might seek to withdraw not because they thought the appeal frivolous but because, seeing themselves as friends of the court, they thought after weighing the probability of success against the time burdens on the court and the attorney if full arguments were presented that it would be best not to pursue the appeal. Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 13. We agreed that the California rule might improperly encourage counsel to consider the burden on the court in determining whether to prosecute an appeal. Wisconsin’s Rule requiring the attorney to outline why the appeal is frivolous obviously does not pose this danger.

We also do not find that the Wisconsin Rule burdens an indigent defendant’s right to effective representation on appeal or to due process on appeal. We have already rejected the contention that by filing a motion to withdraw on the ground that the appeal is frivolous counsel to an indigent defendant denies his or her client effective assistance of counsel or provides a lesser quality of representation than an affluent defendant could obtain. If an attorney can advise the court of his or her conclusion that an appeal is frivolous without impairment of the client’s fundamental rights, it must follow that no constitutional deprivation occurs when the attorney explains the basis for that conclusion. A supported conclusion that the appeal is frivolous does not implicate Sixth or Fourteenth Amendment concerns to any greater extent than does a bald conclusion.

The Anders brief is not a substitute for an advocate’s brief on the merits. As explained above, it is a device for assuring that the constitutional rights of indigent defendants are scrupulously honored. The Wisconsin Rule does no injury to that purpose, nor does it diminish any right a defendant may have under state law to an appeal on the merits. Once the court is satisfied both that counsel has been diligent in examining the record for meritorious issues and that the appeal is frivolous, federal concerns are satisfied and the case may be disposed of in accordance with state law. Of course, if the court concludes that there are nonfrivolous issues to be raised, it must appoint counsel to pursue the appeal and direct that counsel to prepare an advocate’s brief before deciding the merits.

It bears emphasis that the attorney’s obligations as an advocate are not diminished by the additional requirement imposed by the Wisconsin Rule. The attorney must still provide his or her client precisely the services that an affluent defendant could obtain from paid counsel — a thorough review of the record and a discussion of the strongest arguments revealed by that review. In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client. Once that obligation is fulfilled, however, and counsel has determined that the appeal is frivolous — and therefore that the client’s interests would not be served by proceeding with the appeal — the advocate does not violate his or her duty to the client by supporting a motion to withdraw with a brief that complies with both Anders and the Wisconsin Rule.

The judgment of the Wisconsin Supreme Court is

Affirmed.

Justice Kennedy took no part in the consideration or decision of this case.

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join, dissenting.

Indigent and incarcerated, appellant Ellis T. McCoy fights an uphill battle to overturn his conviction. Standing alone, he is hardly a match against the formidable resources the State has committed to keeping him behind bars. Appellant’s most crucial ally in this fight is the court-appointed appellate counsel that the State is constitutionally obligated to furnish him. Because the very State that is resolved to deprive appellant of liberty pays his defense counsel, he might understandably suspect his defender’s allegiance. Sensitive to that natural distrust, we have always assured indigent defendants such as appellant that our Constitution’s guarantee that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defense,” U. S. Const., Arndt. 6, “contemplates the services of an attorney devoted solely to the interests of his client.” Von Moltke v. Gillies, 332 U. S. 708, 725 (1948) (plurality opinion) (citation omitted). We have counseled them not to fear that they will receive no more justice than they can afford, because the “constitutional requirement of substantial equality and fair process” means that the rich and poor alike deserve “the same rights and opportunities on appeal . . . .” Anders v. California, 386 U. S. 738, 744, 745 (1967). The Court today reneges on these longstanding assurances by permitting a State to force its appointed defender of the indigent to advocate against his client upon unilaterally concluding that the client’s appeal lacks merit. I dissent.

I

“The very premise of our adversary system of criminal justice 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). See also Kimmelman v. Morrison, 477 U. S. 365, 379-380 (1986). Accordingly, our Constitution imposes on defense counsel an “overarching duty,” Strickland v. Washington, 466 U. S. 668, 688 (1984), to “ad-vanc[e] ‘the undivided interests of his client,’” Polk County v. Dodson, 454 U. S. 312, 318-319 (1981) (quoting Ferri v. Ackerman, 444 U. S. 193, 204 (1979)), and on the State a concomitant “constitutional obligation ... to respect the professional independence of the public defenders whom it engages,” 454 U. S., at 321-322 (footnote omitted). Once “the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” United States v. Cronic, 466 U. S. 648, 656-657 (1984) (footnote omitted). Our commitment to the adversarial process, we have repeatedly recognized, is every bit as crucial on appeal of a criminal conviction as it is at trial. See, e. g., Douglas v. California, 372 U. S. 353 (1963); Entsminger v. Iowa, 386 U. S. 748, 751 (1967); Evitts v. Lucey, 469 U. S. 387 (1985). On appeal, as at trial, our Constitution guarantees the accused “an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant’s claim.” Evitts, supra, at 394 (citations omitted). See also Jones v. Barnes, 463 U. S. 745, 758 (1983) (Brennan, J., dissenting).

Naturally, the defense counsel’s duty to advocate, whether on appeal or at trial, is tempered by ethical rules. For example, counsel may not in his or her zeal to advocate a client’s case fabricate law or facts or suborn perjury, and must at times disclose law contrary to the client’s position. See ante, at 440-441, and n. 14. Similarly, defense counsel have an ethical duty not to press appeals they believe to be frivolous, even though other lawyers might see an issue of arguable merit. See Polk County, supra, at 323-324. For retained counsel, who may decline to represent a paying client in what counsel believes to be a frivolous appeal, the latter duty does not interfere with the duty of unwavering allegiance to the client. Since, however, court-appointed counsel may withdraw only with court approval, the indigent client who insists on pursuing an appeal that counsel finds frivolous presents a unique dilemma: Appointed counsel, cast ostensibly in the role of defender, must announce to the court that will rule on a client’s appeal that he or she believes the client has no case.

We have struck a delicate balance permitting an appointed counsel to satisfy his or her ethical duty to the court in the manner that least compromises the constitutional duty to advocate the client’s case and that thereby minimizes the disadvantage to the indigent. Our cases make abundantly clear that an appointed counsel’s constitutional duty to advocate zealously on the client’s behalf does not end abruptly upon his or her conclusion that the client has no case. We have, for example, flatly disapproved of a regime that permits appointed defense counsel — or anyone other than the appellate tribunal itself — to adjudge finally the worthiness of an indigent defendant’s appeal. See Lane v. Brown, 372 U. S. 477, 485 (1963); Anders v. California, supra, at 744 (“[T]he court— not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous”).

Similarly, our Constitution strictly limits the appointed counsel’s latitude to depart from the role of defender — either by declining to advocate at all or, worse yet, by opposing the client — when that counsel believes his or her client’s appeal lacks merit. In Anders, supra, we held that a court may not permit appointed counsel to withdraw from a criminal appeal on the basis of the bald assertion that “ ‘there is no merit to the appeal.’” Id., at 742. Instead, appointed counsel’s “role as advocate requires that he support his client’s appeal to the best of his ability” and that any request to withdraw on the ground that the appeal is frivolous “must... be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id., at 744. Central to our analysis was the constitutional imperative to “assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.” Id., at 745. This “constitutional requirement of substantial equality and fair process,” we held, “can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae” Id., at 744. We took pains to emphasize that the Anders-brief 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 is able to obtain.” Id., at 745.

Anders’ injunction against casting appointed counsel in the role of an amicus who might “brief his case against his client” is best understood in light of Ellis v. United States, 356 U. S. 674 (1958) (per curiam), on which Anders relied, where we concluded that defense counsel abdicated their role as advocates by arguing to the court that their client’s appeal was meritless. After identifying a single “‘possible’ area of error,” Ellis v. United States, 101 U. S. App. D. C. 386, 387, 249 F. 2d 478, 479 (1957) (en banc), as presumably Anders would require counsel to do, the “defense” memorandum proceeded to prove (not merely to announce) that “there was not such merit even in this aspect of the appeal as to warrant further prosecution of the appeal,” and that therefore “no substantial question existed in this case.” Ibid, (emphasis omitted). The Court of Appeals commended the defense counsel’s conduct as faithful to their duty “to advise the court in this matter.” Id., at 386, 249 F. 2d, at 478 (emphasis in original). See also ibid. (“[C]ounsel should determine for the benefit of this court whether the case warranted review”); id., at 387, 249 F. 2d, at 479 (“[CJounsel appointed by the court to represent indigent defendants who wish to appeal their convictions owe an obligation to the court as well as to their clients”). We summarily vacated the judgment and remanded, roundly criticizing the role that the Court of Appeals encouraged counsel to play: “In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But repre sentation in the role of an advocate is required.” 356 U. S., at 675 (emphasis added).

Anders and Ellis together carefully prescribe the contours of appointed counsel’s constitutional duty upon concluding that an appeal lacks merit. Appointed counsel must advocate anything in the record arguably supporting the client’s 'position. When counsel has nothing further to say in the client’s defense, he or she should say no more. At that point, an unadorned statement that counsel believes the appeal to be frivolous satisfies the appointed counsel’s constitutional duty to the client and ethical duty to the court, see Polk County, 454 U. S., at 323, and any further discussion of the merits im-permissibly casts defense counsel in the role of amicus.

I — i

Wisconsin’s Rule 809.32(1) forces appointed counsel to do exactly what we denounced in Ellis and Anders. The Rule begins with the requirement, consistent with Anders, that appointed counsel “shall file with the court of appeals ... a brief in which is stated anything in the record that might arguably support the appeal,” but in the next breath it departs from Anders’ prescription by requiring also “a discussion of why the issue lacks merit.” Wis. Rule App. Proc. 809.32(1). The Wisconsin Supreme Court, in language reminiscent of the Court of Appeals’ opinion in Ellis, extolled the discussion requirement “as a significant administrative aid to the reviewing court [which] serves an informational function and, equally important, enables the court to operate in a more efficient, expeditious and cost-saving manner.” Wisconsin ex rel. McCoy v. Wisconsin Court of Appeals, 137 Wis. 2d 90, 103, 403 N. W. 2d 449, 455 (1987). As in Ellis, the foregoing functions, however expedient they might be, describe a role ordinarily filled not by defense counsel, but by amici and the State’s attorney. Under the Rule, then, a court-appointed counsel no longer “acts in the role of an active advocate in behalf of his client.” Anders, 386 U. S., at 744. Far from providing the accused “Assistance of Counsel for his defense,” as the Sixth Amendment mandates, the Rule explicitly “force[s] appointed counsel to brief his case against his client,” id., at 745. No less than the no-merit briefs we disapproved in Ellis, the no-merit discussion undermines the “very premise of our adversary system of criminal justice,” Herring, 422 U. S., at 862.

The Court’s curious conclusion that counsel nevertheless does not act as an amicus curiae when he or she files the requisite no-merit discussion is rooted in a single observation: that the requirement poses little danger that counsel, in deciding whether “to pursue the appeal,” will improperly “weig[h] the probability of success against the time burdens on the court and the attorney.” Ante, at 443 (citation omitted). But declining to burden the court with another case or another brief is not the only, nor even the most common, sense in which counsel act as amici, and is assuredly not the meaning that Anders and Ellis ascribed to the term. The most common definition of “amicus curiae” is “[a] person with a strong interest in or views on the subject matter of an action [who] petition[s] the court for permission to file a brief . . . to suggest a rationale consistent with its own views.” Black’s Law Dictionary 75 (5th ed., 1979). And as the numerous passages quoted above from Ellis and Anders make clear, the Court’s reference to amici focused more on the concern that counsel might advocate against their client than on the concern that they might not advocate at all (a possibility that Anders itself prohibits). Thus, the Wisconsin Rule falls squarely within our flat prohibition against casting defense counsel in the role of amici.

Not only does Wisconsin’s Rule impinge upon the right to counsel, but — contrary to our admonition that “there can be no equal justice where the kind of appeal a man enjoys ‘depends on the amount of money he has,”’ Douglas, 372 U. S., at 355 (quoting Griffin v. Illinois, 351 U. S. 12, 19 (1956) (plurality opinion)) — it does so in manner that ensures the poor will not have “the same rights and opportunities on appeal” as the rich. Anders, supra, at 745. Central to the Court’s contrary position is its repeated observation that neither rich nor poor are entitled to pursue a frivolous appeal. See ante, at 436, 438-439. At issue here, however, is not the indigent’s right “‘to pester a court with frivolous arguments . . . that cannot conceivably persuade the court,’” ante, at 436 (citation omitted), nor the right to a state-funded “unscrupulous attorney” to do so, ante, at 439, n. 12, but the indigent’s right to the usual adversary appellate process to test the validity of a conviction even though a single attorney unilaterally concludes that the appeal lacks merit. Legal issues do not come prepackaged with the labels “frivolous” or “arguably meritorious.” If such characterizations were typically unanimous or uncontroversial, we could freely permit defense counsel to decide finally whether an appeal should proceed, but see Lane v. Brown, 372 U. S. 477 (1963), or to advise the court without any advocacy on their clients’ behalf that an appeal is frivolous, but see Anders, supra; Ellis, supra. It by no means impugns the legal profession’s integrity to acknowledge that reasonable attorneys can differ as to whether a particular issue is arguably meritorious.

Therein lies the Wisconsin Rule’s inequity. When retained counsel in Wisconsin declines to appeal a case on the ground that he or she believes the appeal to be frivolous, the wealthy client can always seek a second opinion and might well find a lawyer who in good conscience believes it to have arguable merit. In no event, however, will any lawyer file in the wealthy client’s name a brief that undercuts his or her position. In contrast, when appointed counsel harbors the same belief, the indigent client has no recourse to a second opinion, and (unless he or she withdraws the appeal) must respond in court to the arguments of his or her own defender. An indigent defendant who accepts the State’s offer of counsel must submit to the state-imposed risk that counsel will advocate against him or her upon unilaterally concluding that the appeal is frivolous, but the defendant with means to purchase a defender whose allegiance is undivided need never fear such treachery. When retained counsel “actively represent conflicting interests” we deride them as “ineffective,” Cuyler v. Sullivan, 446 U. S. 335, 350 (1980); see Wheat v. United States, ante, p. 153, but when appointed counsel actively brief both sides of an appeal we congratulate them for achieving “substantial equality and fair procedure,” ante, at 435.

The Court is left, then, to justify the inequality on the basis of an imagined distinction between the “typical advocate’s brief in a criminal appeal” and the Anders brief. Ante, at 442. It is true that the question presented to the court in an Anders brief (whether the appeal has arguable merit) differs from that presented in a brief on the merits (whether the accused should prevail). Any substantive difference between the two questions, however, does not in itself suggest, as the Court maintains, that counsel’s advocacy on behalf of a client should be any less forceful in the one context than in the other. Anders itself makes clear that the role of counsel writing an Anders brief, like his or her role in a “typical advocate’s brief,” is to advocate. The no-merit letter filed by Anders’ lawyer was flawed because it “did not furnish [An-ders] with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity,” Anders, 386 U. S., at 743 (emphasis added). The Anders brief is supposed to aid the reviewing court, but not in the sense that an amicus does. Rather the Anders brief was designed to spare the reviewing court from having to sift through “only the cold record . . . without the help of an advocate,” id., at 745 (emphasis added).

To be sure, the Anders brief, unlike the typical brief on the merits, concludes with an assertion — “This appeal is frivolous” — that is contrary to the client’s interest. It does not, however, follow that “no constitutional deprivation occurs when the attorney explains the basis for that conclusion.” Ante, at 443. Such a conclusion, the Court seems to agree, is no different in type from other statements that defense attorneys are obligated to make against their clients’ best interests, such as an admission that the weight of authority is against the client’s position or that certain facts belie the client’s case. See ante, at 440-441, and n. 14. No one would suppose that the limited obligation to cite contrary law and facts translates into a general obligation to expose all the weaknesses in a client’s case, or even to explain why the particular law or facts cited disfavor the defense. Merely because counsel constitutionally may take slight deviations from the role of advancing the client’s undivided interests does not mean that counsel constitutionally may entirely abandon that role, nor even that counsel may depart from that role any more than is absolutely necessary to satisfy the ethical obligation.

Neither the Court nor the State identifies any interest that demands so drastic a departure from defense counsel’s “overarching duty,” Strickland, 466 U. S., at 688, to advocate “the undivided interests of his client,” Ferri v. Ackerman, 444 U. S., at 204. No doubt, a counsel’s refutation of the argument that he or she deems frivolous lightens the court’s load, and in some circumstances might even expose an analytical flaw that is not apparent from counsel’s bare conclusion. But an issue that is so clearly without merit as to be frivolous should reveal itself to the court as such with minimal research and no guidance. One might perhaps hypothesize an issue whose frivolity is so elusive as to require refutation. In such an event, as in every other stage of a criminal prosecution, the Wisconsin Supreme Court was surely correct that “[t]he court will be better equipped to make the correct decision about the potential merits of the appeal if it has before it not only the authorities which might favor an appeal, but also the authorities which might militate against it.” 137 Wis. 2d, at 100-101, 403 N. W. 2d, at 454. Never before, however, have we permitted a court to further the interest in having “powerful statements on both sides of [a] question” by compelling a single advocate to take both sides. Cronic, 466 U. S., at 655 (footnotes and internal quotations omitted). There is no more reason to command defense counsel to refute defense arguments they deem frivolous than there is to force them to refute their own arguments on the merits of nonfrivolous appeals. In either situation, the State has a corps of lawyers ready and able to perform that task.

hH H-I HH

The Court purports to leave unscathed the constitutional axiom that appellate counsel “must play the role of an active advocate, rather than a mere friend of the court,” Evitts, 469 U. S., at 394. Our disagreement boils down to whether defense counsel who details for a court why he or she believes a client’s appeal is frivolous befriends the client or the court. The Court looks at Wisconsin’s regime and sees a friend of the client who “assur[es] that the constitutional rights of indigent defendants are scrupulously honored.” Ante, at 444. I look at the same regime and see a friend of the court whose advocacy is so damning that the prosecutor never responds. See Tr. of Oral Arg. 13-14, 30. Either way, with friends like that, the indigent criminal appellant is truly alone.

       Rule 809.32, Wis. Rules of App. Proc., provides:
      “Rule (No merit reports) (1). If an attorney appointed under s.809.30 or ch. 977 is of the opinion that further appellate proceedings on behalf of the defendant would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U. S. 738 (1967), the attorney shall file with the court of appeals 3 copies of a brief in which is stated anything in the record that might arguably support the appeal and a discussion of why the issue lacks merit. The attorney shall serve a copy of the brief on the defendant and shall file a statement in the court of appeals that service has been made upon the defendant. The defendant may file a response to the brief within 30 days of service.
      “(2) The attorney shall file in the trial court a notice of appeal of the judgment of conviction and of any order denying a postconviction motion. The clerk of the trial court shall transmit the record in the case to the court pursuant to s.809.15. The no merit brief and notice of appeal must be filed within 180 days of the service upon the defendant of the transcript under s.809.30(l)(e).
      “(3) In the event the court of appeals finds that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction and the denial of any post-conviction motion and relieve the attorney of further responsibility in the ease. The attorney shall advise the defendant of the right to file a petition for review to the supreme court under s.809.62.”

       The brief stated, in part:
      “Counsel would no longer be an advocate, as required by Anders, but would be in the awkward position of arguing why his client’s appeal lacks merit. This would be contrary to the mandate of Anders that the attorney not brief the case against the client and that the attorney act as an advocate. Since an attorney is legally bound to represent the best interests of his or her client until relieved from further representation by this court, defendant and this attorney submit that a discussion of why any issue lacks merit would violate the sixth amendment.” App. 15-16.

       In his request for a declaratory judgment and a writ of prohibition, appellant asked the Supreme Court to “strike that portion of rule 809.32(1) which requires that the attorney provide reasons why the issue lacks merit as unconstitutional, prohibit the court of appeals from striking the brief already filed, and prohibit the court of appeals from requiring petitioner to provide reasons why relator’s appeal lacks merit in compliance with Rule 809.32(1).” Id., at 54.

       “We have previously recognized, in a case decided prior to the enactment of the no-merit rule, that the Anders analysis compels appointed counsel to ‘perform his duties as adequately as paid counsel so the indigent will not be deprived of adequate representation because of his indigency.’ Cleghorn v. State, 55 Wis. 2d 466, 471, 198 N. W. 2d 577 (1972). We reaffirm our belief in that principle.” 137 Wis. 2d, at 97, 403 N. W. 2d, at 452.

       “While Anders does not sanction the use of the discussion requirement, it does not proscribe it, either.” Ibid.

       “[W]e do not believe the rule requires an attorney to argue against the client; rather, we believe the rule requires an attorney to fulfill a duty that co-exists with the duty owed to the client — that duty which is owed to the court. The court will be better equipped to make the correct decision about the potential merits of the appeal if it has before it not only the authorities which might favor an appeal, but also the authorities which might militate against it.” Id,. at 100-101, 403 N. W. 2d, at 454.

       “Appointed appellate criminal defense counsel’s request to withdraw in itself puts the court on notice that counsel considers the arguments in the no-merit brief frivolous. Once raised, frivolous arguments by their very nature should not be difficult for a court to evaluate on its own without counsel supplying case authorities or factual references which militate against the appeal.” Id., at 106, 403 N. W. 2d, at 456 (Abrahamson, J., dissenting).

       “See ABA Standards for Criminal Justice, Commentary to 4 — 3.9 (2d ed. 1980) (‘No lawyer, whether assigned by the court, part of a legal aid or defender staff, or privately retained or paid, has any duty to take any steps or present dilatory or frivolous motions or any actions that are unfounded according to the lawyer’s informed professional judgment. On the contrary, to do so is unprofessional conduct’); ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 956, Obligation to Take Criminal Appeal, reprinted in 2 Informal Ethics Opinions 955-956 (1975) (like court-appointed lawyer, private counsel ‘ethically, should not clog the courts with frivolous motions or appeals’). See also Nickols v. Gagnon, 454 F. 2d 467, 472 (CA7 1971).” Polk County v. Dodson, 454 U. S. 312, 323-324, n. 14 (1981).

       “Of course, if counsel finds his ease to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U. S., at 744 (emphasis added).

       The terms “wholly frivolous” and “without merit” are often used interchangeably in the Anders-hrief context. Whatever term is used to describe the conclusion an attorney must reach as to the appeal before requesting to withdraw and the court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact.

       The question presented by Anders’ certiorari petition read as follows: “May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant’s first appeal as of right on the basis of a conelusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?” See Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 2.
      The court gave a negative answer to that question. A “condusory statement” by counsel is not sufficient to justify an appellate court’s refusal to provide counsel to argue an indigent defendant’s appeal. For the court — not counsel — must “decide whether the [appeal] is wholly frivolous,” 386 U. S., at 744, and counsel must provide the court with sufficient guidance to make sure that counsel’s appraisal of the case is correct.

       Although a wealthy defendant cannot pay to have frivolous arguments presented to the court unless he or she locates an unscrupulous attorney, such a defendant can pay to have a competent attorney examine the trial court record, search for error, and explain to him or her the strongest arguments that could be made in support of an appeal.

       It is essential to keep in mind that the so-called “Anders brief” is not expected to serve as a substitute for an advocate’s brief on the merits, for it would be a strange advocate’s brief that would contain a preface advising the court that the author of the brief is convinced that his or her arguments are frivolous and wholly without merit. Rather, the function of the brief is to enable the court to decide whether the appeal is so frivolous that the defendant has no federal right to have counsel present his or her case to the court.

       Rule 3.3 of the ABA Model Rules of Professional Conduct (1984) provides in part:
      “CANDOR TOWARD THE TRIBUNAL
      “(a) A lawyer shall not knowingly:
      “(1) make a false statement of material fact or law to a tribunal;
      “(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
      “(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; oí
      “(4) offer evidence that the lawyer knows to be false.”
      The commentary to the Rule explains, “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” See also G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 352 (1985) (“The duty to reveal adverse precedent is well established”).

       See Brief for the National Legal Aid and Defender Association et al. as Amici Curiae 6.

       Anders argued in his brief that counsel should be required to state why he or she thought the appeal frivolous. He referred with approval in his brief to the practice of the United States Court of Appeals for the District of Columbia Circuit, which required counsel to “convince the court that the issues are truly ‘frivolous’ ... in a documented memorandum which analyzes the facts and applicable law.” Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 16.

       Viewed in that light, our statement in Anders that we “would not force appointed counsel to brief his case against his client,” Anders v. California, 386 U. S. 738, 745 (1967), or to act as an amicus curiae, is directly responsive to Anders’ argument that, notwithstanding Ellis, “[c]ounsel must convince the court that the issues are truly ‘frivolous.’ This must be done in a documented memorandum which analyzes the facts and applicable law.” Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 16.

       As a preliminary matter, the Court’s contention that the brief prescribed by Wisconsin law “is not a substitute for an advocate’s brief on the merits,” ante, at 444; see also ante, at 439-440, n. 13, is belied by the reality that such briefs usually culminate not simply in a grant of counsel’s motion to withdraw, but in an affirmance of the conviction, see Wis. Rule App. Proc. 809.32(3).

       The Court creatively recharacterizes the Anders brief as designed to “provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability,” ante, at 439. In the first place, Anders did not focus on whether the lawyer is a careful defender or a clear thinker. The appellate court may not merely examine counsel’s brief and rubber-stamp his or her conclusion; it merely uses the brief as a guide in order to conduct an independent inquiry into the otherwise “cold record.” Anders, 386 U. S., at 745. More importantly, the recharacterization proves little. One might just as easily recharacterize the inquiry on the merits of an appeal as whether counsel correctly concluded that the client should prevail. Yet this recharacterization would not impose on defense counsel an obligation to rebut their own arguments on the merits.


author: Justice O’Connor

text:
    CLARK v. JETER
    No. 87-5565.
    Argued April 19, 1988
    Decided June 6, 1988

      O’Connor, J., delivered the opinion for a unanimous Court.

      Evalynn B. Welling argued the cause for petitioner. With her on the brief was Eileen D. Yacknin.

      Craig McClean argued the cause for respondent. With him on the brief was Wendell G. Freeland.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by John A. Powell, Helen Hersh-koff, Steven R. Shapiro, and Stefan Presser; and for the Women’s Legal Defense Fund et al. by Erwin N. Griswold, Judith L. Lichtman, Donna R. Lenhoff, and James D. Weill.

   Justice O’Connor

delivered the opinion of the Court.

Under Pennsylvania law, an illegitimate child must prove paternity before seeking support from his or her father, and a suit to establish paternity ordinarily must be brought within six years of an illegitimate child’s birth. By contrast, a legitimate child may seek support from his or her parents at any time. We granted certiorari to consider the constitutionality of this legislative scheme.

I

On September 22, 1983, petitioner Cherlyn Clark filed a support complaint in the Allegheny County Court of Common Pleas on behalf of her minor daughter, Tiffany, who was born out of wedlock on June 11, 1973. Clark named respondent Gene Jeter as Tiffany’s father. The court ordered blood tests, which showed a 99.3% probability that Jeter is Tiffany’s father.

Jeter moved to dismiss the complaint on the ground that it was barred by the 6-year statute of limitations for paternity actions. In her response, Clark contended that this statute is unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In the alternative, she argued that the statute was tolled by fraudulent and misleading actions of the welfare department, or by threats and assaults by Jeter.

The trial court upheld the statute of limitations on the authority of Astemborski v. Susmarski, 499 Pa. 99, 451 A. 2d 1012 (1982), vacated, 462 U. S. 1127 (1983), reinstated on remand, 502 Pa. 409, 466 A. 2d 1018 (1983). The Pennsylvania Supreme Court there had considered and rejected constitutional challenges similar to Clark’s. The trial court also rejected Clark’s argument that the statute should be tolled, specifically finding that any fear that Clark may have had of Jeter had subsided more than six years before she filed her support complaint. Therefore, the trial court entered judgment for Jeter.

Clark appealed to the Superior Court of Pennsylvania, again raising her constitutional challenges to the 6-year statute of limitations. Before the court decided her case, the Pennsylvania Legislature enacted an 18-year statute of limitations for actions to establish paternity. . Act of Oct. 30, 1985, No. 66, § 1, subch. C, 1985 Pa. Laws 270, codified at 23 Pa. Cons. Stat. § 4343(b) (1985). Pennsylvania thereby brought its law into compliance with a provision of the federal Child Support Enforcement Amendments of 1984 that requires all States participating in the federal child support program to have procedures to establish the paternity of any child who is less than 18 years old. 98 Stat. 1307, 42 U. S. C. §666(a)(5) (1982 ed., Supp. IV). The Superior Court concluded, however, that Pennsylvania’s new 18-year statute of limitations did not apply retroactively, and that it would not revive Clark’s cause of action in any event. 358 Pa. Super. 550, 518 A. 2d 276 (1986). It affirmed the trial court’s conclusions that the 6-year statute of limitations was constitutional, and that Clark’s tolling argument was without merit. Thereafter, the Superior Court denied Clark’s motion for reargument. The Pennsylvania Supreme Court denied her petition for allowance of appeal. We granted Clark’s petition for certiorari. 484 U. S. 1003 (1988).

HH

Clark s first argument to this Court is that Pennsylvania’s 6-year statute of limitations is invalid because it conflicts with the federal Child Support Enforcement Amendments of 1984, which she says require States to adopt retroactive 18-year statutes of limitations in paternity cases. See 42 U. S. C. § 666(a)(5) (1982 ed., Supp. IV). Because this argument raises an issue of statutory interpretation, we ordinarily would address it before reaching the constitutional claims. Blum v. Bacon, 457 U. S. 132, 137 (1982); see Townsend v. Swank, 404 U. S. 282, 285, 291 (1971). Having reviewed the record, however, we find that Clark did not adequately present a federal pre-emption argument to the lower courts. It is our practice, when reviewing decisions by state courts, not to decide federal claims that were not “pressed or passed upon” below. Bankers Life & Casualty Co. v. Crenshaw, 486 U. S. 71, 79-80 (1988).

The Pennsylvania Legislature passed the 18-year statute of limitations on October 30, 1985. At that time, Clark already had filed her brief on appeal to the Superior Court. Clark immediately suggested a remand to determine the retroactivity of the new Pennsylvania statute. But the Superior Court instead itself decided that the 6-year statute of limitations would continue to apply to cases like Clark’s. The court reasoned that, under Pennsylvania law, a statute is retroactive only if the legislature clearly and manifestly so intends, and it found insufficient evidence of such an intent. The decision did not address the relevance of the federal Child Support Enforcement Amendments to the continuing validity of the 6-year statute of limitations. 858 Pa. Super., at 553-555, 518 A. 2d, at 278.

In her application for reargument in the Superior Court and in her petition for appeal to the Pennsylvania Supreme Court, Clark argued that the Superior Court had overlooked Pennsylvania cases which had applied similar statutes of limitations retroactively, as well as indications that the federal Child Support Enforcement Amendments required States to adopt retroactive 18-year statutes of limitations or their equivalent. See 42 U. S. C. § 666(a)(5) (1982 ed., Supp. III); 50 Fed. Reg. 19608, 19631 (1985). But Clark did not expressly assert that the 6-year statute of limitations was preempted by the new federal law. We interpret Clark’s argument to be that the Pennsylvania Legislature intended to comply with the new conditions on the federal spending program, which arguably showed that it clearly and manifestly intended its new statute to be retroactive. This question of how to interpret the Pennsylvania statute ultimately is a matter of state law. We find that Clark’s argument below was not adequate to raise a federal pre-emption claim. Accordingly, we do not address it here and proceed to her equal protection claim.

In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U. S. Const., Arndt. 14, § 1, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 17 (1973); cf. Lyng v. Automobile Workers, 485 U. S. 360, 370 (1988). Classifications based on race or national origin, e. g., Loving v. Virginia, 388 U. S. 1, 11 (1967), and classifications affecting fundamental rights, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 672 (1966), are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. See, e. g., Mississippi University for Women v. Hogan, 458 U. S. 718, 723-724, and n. 9 (1982); Mills v. Habluetzel, 456 U. S. 91, 99 (1982); Craig v. Boren, 429 U. S. 190, 197 (1976); Mathews v. Lucas, 427 U. S. 495, 505-506 (1976).

To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective. Consequently we have invalidated classifications that burden illegitimate children for the sake of punishing the illicit relations of their parents, because “visiting this condemnation on the head of an infant is illogical and unjust.” Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175 (1972). Yet, in the seminal case concerning the child’s right to support, this Court acknowledged that it might be appropriate to treat illegitimate children differently in the support context because of “lurking problems with respect to proof of paternity.” Gomez v. Perez, 409 U. S. 535, 538 (1973).

This Court has developed a particular framework for evaluating equal protection challenges to statutes of limitations that apply to suits to establish paternity, and thereby limit the ability of illegitimate children to obtain support.

“First, the period for obtaining support . . . must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims.” Mills v. Habluetzel, 456 U. S., at 99-100.

In Mills, we held that Texas’ 1-year statute of limitations failed both steps of the analysis. We explained that paternity suits typically will be brought by the child’s mother, who might not act swiftly amidst the emotional and financial complications of the child’s first year. And, it is unlikely that the lapse of a mere 12 months will result in the loss of evidence or appreciably increase the likelihood of fraudulent claims. Id., at 100-101. A concurring opinion in Mills explained why statutes of limitations longer than one year also may be unconstitutional. Id., at 102-106 (O’Connor, J., joined by Burger, C. J., and Brennan and Blackmun, JJ., and joined as to Part I by Powell, J., concurring). First, the State has a countervailing interest in ensuring that genuine claims for child support are satisfied. Second, the fact that Texas tolled most other causes of action during a child’s minority suggested that proof problems do not become overwhelming during this period. Finally, the practical obstacles to filing a claim for support are likely to continue after the first year of the child’s life.

In Pickett v. Brown, 462 U. S. 1 (1983), the Court unanimously struck down Tennessee’s 2-year statute of limitations for paternity and child support actions brought on behalf of certain illegitimate children. Adhering to the analysis developed in Mills, the Court first considered whether two years afforded a reasonable opportunity to bring such suits. The Tennessee statute was relatively more generous than the Texas statute considered in Mills because it did not limit actions against a father who had acknowledged his paternity in writing or by furnishing support; nor did it apply if the child was likely to become a public charge. Nevertheless, the Court concluded that the 2-year period was too short in light of the persisting financial and emotional problems that are likely to afflict the child’s mother. Proceeding to the second step of the analysis, the Court decided that the 2-year statute of limitations was not substantially related to Tennessee’s asserted interest in preventing stale and fraudulent claims. The period during which suit could be brought was only a year longer than the period considered in Mills, and this incremental difference would not create substantially greater proof and fraud problems. Furthermore, Tennessee tolled most other actions during a child’s minority, and even permitted a support action to be brought on behalf of a child up to 18 years of age if the child was or was likely to become a public charge. Finally, scientific advances in blood testing had alleviated some problems of proof in paternity actions. For these reasons, the Tennessee statute failed to survive heightened scrutiny under the Equal Protection Clause.

In light of this authority, we conclude that Pennsylvania’s 6-year statute of limitations violates the Equal Protection Clause. Even six years does not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child. “The unwillingness of the mother to file a paternity action on behalf of her child, which could stem from her relationship with the natural father or . . . from the emotional strain of having an illegitimate child, or even from the desire to avoid community and family disapproval, may continue years after the child is born. The problem may be exacerbated if, as often happens, the mother herself is a minor.” Mills, supra, at 105, n. 4 (O’Connor, J., concurring). Not all of these difficulties are likely to abate in six years. A mother might realize only belatedly “a loss of income attributable to the need to care for the child,” Pickett, supra, at 12. Furthermore, financial difficulties are likely to increase as the child matures and incurs expenses for clothing, school, and medical care. See, e. g., Moore v. McNamara, 40 Conn. Supp. 6, 11, 12, 478 A. 2d 634, 637 (1984) (invalidating a 3-year statute of limitations). Thus it is questionable whether a State acts reasonably when it requires most paternity and support actions to be brought within six years of an illegitimate child’s birth.

We do not rest our decision on this ground,, however, for it is not entirely evident that six years would necessarily be an unreasonable limitations period for child support actions involving illegitimate children. We are, however, confident that the 6-year statute of limitations is not substantially related to Pennsylvania’s interest in avoiding the litigation of stale or fraudulent claims. In a number of circumstances, Pennsylvania permits the issue of paternity to be litigated more than six years after the birth of an illegitimate child. The statute itself permits a suit to be brought more than six years after the child’s birth if it is brought within two years of a support payment made by the father. And in other types of suits, Pennsylvania places no limits on when the issue of paternity may be litigated. For example, the intestacy statute, 20 Pa. Cons. Stat. §2107(3) (1982), permits a child born out of wedlock to establish paternity as long as “there is clear and convincing evidence that the man was the father of the child.” Likewise, no statute of limitations applies to a father’s action to establish paternity. In re Mengel, 287 Pa. Super. 186, 429 A. 2d 1162 (1981). Recently, the Pennsylvania Legislature enacted a statute that tolls most other civil actions during a child’s minority. 42 Pa. Cons. Stat. § 5533(b) (Supp. 1987). In Pickett and Mills, similar tolling statutes cast doubt on the State’s purported interest in avoiding the litigation of stale or fraudulent claims. 462 U. S., at 15-16; 456 U. S., at 104-105 (O’Connor, J., concurring); id., at 106 (Powell, J., concurring in judgment). Pennsylvania’s tolling statute has the same implications here.

A more recent indication that Pennsylvania does not consider proof problems insurmountable is the enactment by the Pennsylvania Legislature in 1985 of an 18-year statute of limitations for paternity and support actions. 23 Pa. Cons. Stat. § 4343(b) (1985). To be sure the legislature did not act spontaneously, but rather under the threat of losing some federal funds. Nevertheless, the new statute is a tacit concession that proof problems are not overwhelming. The legislative history of the federal Child Support Enforcement Amendments explains why Congress thought such statutes of limitations are reasonable. Congress adverted to the problem of stale and fraudulent claims, but recognized that increasingly sophisticated tests for genetic markers permit the exclusion of over 99% of those who might be accused of paternity, regardless of the age of the child. H. R. Rep. No. 98-527, p. 38 (1983). This scientific evidence is available throughout the child’s minority, and it is an additional reason to doubt that Pennsylvania had a substantial reason for limiting the time within which paternity and support actions could be brought.

We conclude that the Pennsylvania statute does not withstand heightened scrutiny under the Equal Protection Clause. We therefore find it unnecessary to reach Clark’s due process claim. The judgment of the Superior Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       Although Jeter’s motion referred to § 6704(e),' that section had been altered slightly and relabeled as § 6704(b) at the time of the litigation below. See Act of Dec. 20, 1982, No. 326, Art. II, § 201, 1982 Pa. Laws 1409. As amended, the section provided:
      “All actions or proceedings to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action or proceeding may be commenced at any time within two years of any such contribution or acknowl-edgement by the reputed father.” 42 Pa. Cons. Stat. § 6704(b) (1982) (repealed 1985).