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Zarder v. Acuity, 2010 WI 35

supreme court decision; BiC; Resp.; Reply

Court of Appeals Authority to Declare Dicta

¶57     By concluding that a statement in a supreme court opinion is dictum, the court of appeals necessarily withdraws or modifies language from that opinion, contrary to our directive in Cook. …

¶58     If the court of appeals could dismiss a statement in a prior case from this court as dictum, the limitation in Cook against overruling, modifying, or withdrawing language would be seriously undermined. We therefore conclude that to uphold the principles of predictability, certainty, and finality, the court of appeals may not dismiss a statement from an opinion by this court by concluding that it is dictum.

The problem traces to Cook, which says that only the supreme court “has the power to overrule, modify or withdraw language from” either a published court of appeals or supreme court decision, ¶¶51, 53. But what happens if the court of appeals subsequently discerns that published language is dicta? The court now “recognize(s) that previous decisions written by this court have provided inconsistent guidance on the definition and effect of dicta in Wisconsin cases,” Zarder, ¶52, and proceeds to describe “two disparate lines of Wisconsin cases defining dicta.” The court makes no attempt to reconcile these competing lines, but instead absolutely precludes the court of appeals from declaring as “dicta” any statement in a supreme court decision. Does this mean that the court of appeals is bound by what is now undeclared dicta? Presumably so, otherwise, why bother imposing this limitation? But what about the court of appeals’ power to declare as dicta its own prior published language? The supreme court doesn’t explicitly address this point, but reserving this authority would be inconsistent with Cook, so Zarder almost certainly precludes it.

It’s not as obscure a principle as might appear, and indeed is likely not only to recur but to do so in unexpected contexts. No attempt will be made to elaborate in a short post like this, but consider these possibilities: What happens to a published court of appeals decision reversed “on other grounds” by the supreme court? The untouched portion of the lower court remains binding, as it wasn’t “overruled, withdrawn, or modified,” State v. Gary M.B., 2003 WI App 72, ¶13, which (of course) was itself affirmed on other grounds, 2004 WI 33. Does a court of appeals’ panel have authority to change language in its own recently issued opinion after it’s been ordered published? Infrequent, but it does happen. Yes, the court may undertake “reconsideration” on motion or sua sponte, § 809.24, but that may or may not be something else. What happens when the supreme court has issued conflicting statements? The court of appeals is “bound by the most recent pronouncements of the Wisconsin Supreme Court,” State v. Walter Leutenegger, 2004 WI App 127, ¶5. And if it is the court of appeals that has reached inconsistent views? “Where two court of appeals decisions conflict, the first decision governs,”  State v. Esteban Martinez, 2007 WI App 225, ¶23 (concurrence).

That’s enough. You can play this game yourself at home. Try it out. But first, you may want to read this subsequent post, discussing the potential distinction between “reversed” and “overruled” court of appeals’ precedent.

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