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Binding Authority – Dicta, Conflicting With Supreme Court Precedent, Withdrawal by Court of Appeals

State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski

Issue/Holding: Holding of Wisconsin supreme court binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d 129, 619 N.W.2d 137.

Just to be perfectly clear: the court of appeals does not have authority to overrule its ownprecedent, State v. Andre Bolden, 2003 WI App 155, ¶¶9-10. Indeed, sweeping language in supreme court cases indicates that the court of appeals lacks power to withdraw any language, including mere dicta, from its own published decisions. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, citing, Cook v. Cook, 208 Wis.  2d 166, 189, 560 N.W.2d 246, 256 (1997). See also American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 (“This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so.”), reversed on other grds., 2004 WI 2; and State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (same). Presumably, then, if that’s all that was up for discussion in Harden’s case—mere dicta in a prior published case—then the court of appeals presumably couldn’t withdraw the language. (Though it must also be said that mere dicta isn’t binding anyway; you don’t have to follow it, so there’s no real need to withdraw it.) But there is here an overarching principle at work: the court of appeals is bound by supreme court precedent, to which it must give way. E.g., State v. Walter Leutenegger2004 WI App 127, ¶5, quoting Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995): “[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.” And that is what the court of appeals in effect did in Harden’s instance, follow a (binding) supreme court pronouncement on an issue. The court of appeals also stresses that its prior, now-withdrawn pronouncement was dicta, ¶6 (as indeed it was, simply because it was language wholly unnecessary to the holding; see, e.g., Morford, ¶33 n. 4, for general definition of dicta). Why give so much attention to this? Because the result in this case—though no doubt correct—doesn’t explicitly address the somewhat obscure but nonetheless recurrent problem of just when the court of appeals has authority to withdraw its own published language, dicta or not. The result does show that, sweeping language in prior cases aside, the inhibition on this authority is not absolute. But that authority is obviously quite limited. It’s highly unlikely that the court of appeals can withdraw its own published dicta simply because it is dicta; to that extent, the court’s stress in this instance may be somewhat misleading. It isn’t so much that the prior pronouncement was “dicta” but, rather, that it is a dead letter in light of supreme court precedent with which it conflicts.

What about conflicting court of appeals’ decisions? See State v. Swiams, 2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452, citing State v. Bolden, 2003 WI App 155, ¶ 9-11, 265 Wis. 2d 853, 667 N.W.2d 364, for the pricniple that “if two court of appeals decisions conflict, the first governs.”

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