Thursday, January 2, 2020

Dicta: a hierarchy


We know the nuances distinguishing dicta and holdings keep you awake at night, thrashing about in bed, your mind ablaze. But had you ever considered whether that dicta was emphatic? No, you hadn’t. Because why would you, until the Tenth Circuit’s recent decision in Padilla?

Sure, “[s]tatements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand,” are dicta, and don’t bind subsequent courts. United States v. Villarreal–Ortiz, 553 F.3d 1326, 1328 n.3 (10th Cir. 2009); Bates v. Dep't of Corrections, 81 F.3d 1008, 1011 (10th Cir. 1996). But what if some dicta is more important than other dicta? And how do you tell?

Three kinds of dicta reign supreme. First, the Tenth Circuit considers itself “bound by the Supreme Court's considered dicta almost as firmly as by the Court’s outright holdings[.]” United States v. Burkholder, 816 F.3d 607, 619 (10th Cir. 2016). Second, dicta in a state court decision concerning state law binds a federal court “if it appears to be a clear and unequivocal exposition of the law and is not in conflict with other decisions of that court.” Home Royalty Ass’n v. Stone, 199 F.2d 650, 655 (10th Cir. 1952).

And now we have a third entrant into the dicta hall of importance. The Tenth Circuit just held (albeit in an unpublished opinion) that “well-reasoned and emphatic dicta . . . will and should be afforded more weight by later panels than casual dicta.” United States v. Padilla, __ Fed. Appx. __, 2019 WL 5692530 at 6 (10th Cir. 2019), quoting United States v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J., concurring).

So what is “emphatic” dicta? The limited number of cases to examine that question say that “emphatic” dicta appears when the circuit court undertakes “a meticulous and conscientious effort” to “clarify the law,” even when that point of law is not decided in the cited case. United States v. Conradt, 2015 WL 480419 at 1 (S.D.N.Y. 2015).

How does this help you? When the government screams “DICTA,” holler back “EMPHATIC DICTA” and explain how the case you are citing attempted to settle the legal point you are arguing. We would continue to discuss why the emphatic dicta canon mirrors the ancient distinction between dictum and obiter dictum, see Abramowicz and Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1048 (March 2005), but you’ve been patient enough.

--Kirk Redmond

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