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Binding Authority – Dicta

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose


¶18      However, our rejection of the Committee’s definition of cunnilingus does not fully resolve this issue since, as we have observed, this definition met with at least tacit approval by the Childs court. However, we are not bound by theChilds case because it was not a cunnilingus case ….¶19      The court of appeals’ reference to cunnilingus in Childs occurred only because that term and its definition were part of the larger instruction that also addressed fellatio, which was the conduct at issue in the case. Thus, the court’s reference to cunnilingus was factually irrelevant to the issue and unnecessary to the analysis and holding of the case. As such, the reference was dicta and we are not bound by such commentary.  See State v. Sartin, 200 Wis.  2d 47, 60 n.7, 546 N.W.2d 449 (1996) (stating that language expressed in a court’s opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it is dicta).

Remember this result the next time a court throws at you sweeping language indicating 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;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). Can’t, that is, withdraw language; but is nonetheless not compelled to follow that language if it’s mere dicta, as this result clearly shows.


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