The Wisconsin Court of Appeals, as well as the circuit courts, are bound by previous published appellate decisions, which means that they must follow published decisions unless and until those decisions are overruled by the Supreme Court of Wisconsin. This requirement to follow previous decisions, or “precedent,” is commonly referred to as “stare decisis.”
“Dictum”—a shortening of the Latin phrase “obiter dictum”, or “something said in passing”[1]—is an interesting and somewhat amorphous concept related to determining which portions of a court’s decision are binding and form the basis for stare decisis. Black’s Law Dictionary defines dictum generally as a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”[2]
While constructing a legal argument on a particular issue, you might find a statement in a published decision from the Supreme Court of Wisconsin or the Wisconsin Court of Appeals that supports your argument (or goes against your argument), but that statement is not very strong. One example might be the court making an apparently offhand statement in passing that supports your argument. Another might be where the court discusses your issue in more detail, but that discussion is not strictly necessary for the court to reach its decision. Is that statement “dictum”, and must the court follow that language?
There are two competing definitions of “dicta” (the plural of “dictum”) in Wisconsin. Under one line of cases, any “discussion of a question ‘germane to … the controversy’ is not dictum, even if that discussion is not ‘decisive.’” See Zarder v. Humana Ins. Co., 2010 WI 35, ¶ 52 n. 19, 324 Wis. 2d 325, 782 N.W.2d 682 (quoted source omitted). Thus, just because a statement is not necessary or “decisive,” does not mean that it is dictum. Another line of cases is broader and “defines dictum as ‘a statement or 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.’” Id. (quoting State v. Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996)).
So, can a statement in a published decision that falls under either of these definitions of “dictum” be disregarded? The Supreme Court in Zarder apparently said “no.” In Zarder, the Supreme Court addressed whether, “regardless of how it is defined, can the court of appeals dismiss a statement from an opinion by this court by concluding that it is dictum.” Id., ¶ 53. The Zarder court observed that the Supreme Court of Wisconsin “has the exclusive power to overrule, modify, or withdraw language from prior Wisconsin cases.” Id., ¶ 54. Thus, if the court of appeals concludes that a published decision is wrong, it must still follow that decision. Applied to the concept of dicta, the Supreme Court concluded that “the court of appeals may not dismiss a statement from an opinion by this court by concluding that it is dictum” because that would necessarily withdraw or modify language from that previous opinion. Id., ¶¶ 57-58.
Although Zarder was specifically addressing language from Supreme Court decisions, its reasoning would also apparently apply to language in published court of appeals decisions, since concluding that particular language is “dictum” would “necessarily” withdraw or modify language in a published decision.
According to Zarder, it appears that Wisconsin courts are bound by all legal conclusions in published decisions (court of appeals or Supreme Court) since only the Supreme Court can withdraw or modify that language. See Cook v. Cook, 208 Wis. 166, 190, 560 N.W.2d 246 (1997) (holding that “the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals”). Taking Zarder’s pronouncements at face value, it would not appear to make any difference whether language in a published decision is “dictum” or not.
In practice, however, the Wisconsin Court of Appeals does not appear to read Zarder so strictly, at least when it comes to language from its own published decisions. Where the language in question is from the Supreme Court of Wisconsin, the court of appeals appears to read Zarder as prohibiting it from disregarding any language as dicta. See, e.g., State v. Talley, 2015 WI App 4, ¶ 31 n.6, 359 Wis. 2d 522, 859 N.W.2d 155 (rejecting an argument that the court of appeals could disregard language in a supreme court case as dictum). With respect to the court of appeals’ own decisions, the court has been receptive to arguments that certain language is “dictum” and therefore not controlling. See Pepsi-Cola Metropolitan Bottling Co. v. Employers Ins. Co., 2022 WI App 45, ¶¶ 27-28, 404 Wis. 2d 337, 979 N.W.2d 627; but see Hartwig v. American Family Mut. Ins. Co., No. 2016AP58, unpublished slip op. at ¶ 12 n. 5 (WI App May 31, 2017) (declining to dismiss a statement in a published court of appeals decision as “dictum” citing Zarder).
In summary, if a published decision from the Supreme Court of Wisconsin contains language that addresses your issue, then it is binding on lower courts whether it is “dictum” or not. The court of appeals may or may not apply Zarder with respect to language in its own decisions. Thus, if language from a published court of appeals decision supports your argument, you should argue that it is binding under Zarder’s analysis, but you should also be prepared to address any “dicta” arguments. Conversely, if language from a court of appeals decision goes against your argument, it might still be worthwhile to argue that it is “dictum” and therefore not part of the binding decision.
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[1] Orbiter dictum, Black’s Law Dictionary (11th ed. 2019)
[2] Id.
