State v. Dwight M. Sanders, 2007 WI App 174, affirmed, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
¶26 The State argues that our supreme court’s decision in Hughes validates the officers’ hot pursuit entry in this case. In Hughes, the court held that the crime of possession of marijuana was serious enough to justify the warrantless entry of an apartment under the exigent circumstance of preventing the destruction of evidence. Hughes, 233 Wis. 2d 280, ¶¶22, 30. The court refused to look only to the punishment for first-offense possession of marijuana, a misdemeanor, to determine the seriousness of the crime at issue.Id., ¶¶30, 34. Instead, the court opted for a broader approach that also considered the facts of the case that supplied the police with the probable cause to believe that the evidence of illegal drugs would be found within the apartment and the entire penalty structure for drug offenses. Id., ¶¶34-35.
The concurrence has some words on the subject, worth repeating:
¶40 One more thing. I wholeheartedly agree with the majority opinion’s rejection of the State’s argument that we need not follow Mikkelson because it is dicta. The State seems to think that if a narrower holding in the decision can be found, anything else written by the court on another ground is dicta. That is nonsense. First, courts can and often do give alternative reasons for their decisions. Alternative rationales are not dicta. Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.”). Second, courts do not write just to pass the time away. We write because we have something that needs to be said. When we intentionally take something up, research it and provide a reasoned explication of what we want to say, it is for transparency purposes: it shows the public the factors that played an important part in the decision. It also shows the results of the collegial give-and-take that occurred during the decision process. And it shows that the court means to mark the law on a subject. Third, the old-world view that a dictum is a statement in an opinion not necessary to the decision of the case is, at its core, absurd. Taken to its logical end, the only statement in an appellate opinion strictly necessary to the decision is the order of the court. As one commentator has noted, a “quibble like this shows how useless the definition is.” Dictum Revisited, 4 Stan. L. Rev. 509, 509 (1952).
¶41 The term “dicta,” in my view, is often too broadly defined, usually by a lawyer who is searching for a way not to be bound by a prior published decision. But the term should be limited to those situations where a court notes, in passing, that a certain issue is lurking in the background, gives its off-the-cuff opinion without analysis and leaves it at that. That is what dicta is. Even though I disagree with Mikkelson, its discussion of Welsh was certainly not dicta. The panel zeroed in on Welsh, interpreted it and set a bright line rule. If the State disagrees with Mikkelson, and it obviously does, its recourse is to petition for review and ask the supreme court to overrule Mikkelson. But it should not try to pass it off as dicta.
And, the supreme court indeed overruled Mikkelson, 2008 WI 85, ¶94.