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Binding Authority – Dicta: General Principles

State v. William L. Morford, 2004 WI 5, on review of unpublished decision
For Morford: Lynn E. Hackbarth

Issue/Holding: ¶33 n. 4:

For discussions of Wisconsin’s views on dictum, see, e.g., State v. Picotte, 2003 WI 42, ¶¶60-61 n.16, 261 Wis. 2d 249, 661 N.W.2d 381 (reviewing two lines of cases on dictum); State v. Leitner, 2002 WI 77, ¶22 n.16, 253 Wis. 2d 449, 646 N.W.2d 341 (same); State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) (“dictum is a statement in a court’s opinion that goes beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it”; dictum is not controlling); State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988) (it is not inappropriate for a court to evaluate statements in Supreme Court opinions on the basis of whether they constitute dicta); Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 602, 405 N.W.2d 327 (1987) (disapproving of discussion of reducing clause in Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 345 N.W.2d 874 (1984), as dicta); Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984) (adopting the generally accepted doctrine that “a statement not addressed to the question before the court or necessary for its decision” is dictum, and not binding on the court); Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980) (same).

Narrow view of dicta, at least when looking for guidance from Supreme Court, Bradley v. Henry, 9th Cir No. 04-15919, 6/22/05:

Still, a doubt persists. Dicta in normal judicial parlance are statements of a court not necessary to its resolution of the case before it; holdings consist in the rules disposing of the case. But the Supreme Court often enough enunciates principles of law that are not actually applied in the case before it. The principles would be categorized as dicta if the court were not the Supreme Court. But these principles are treated by courts and commentators as established federal law….

It would be rash for us to disregard the pronouncement of Justice Cardozo and its acknowledgment in Stincer and Spain and Gagnon because a technical reading of these cases could classify the relevant principle as dicta. The Constitution lives by such comprehensive commentary from the Supreme Court. We cannot deprive the document of vitality by squeezing great principles into a dustbin labeled dicta. We apply as established federal law the broad principle set out in Snyder, Stincer, Spain and Gagnon. This approach appears to be confirmed by the gloss written by the Supreme Court on “holdings, as opposed to dicta.” …


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