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The Ninth Circuit's Dicta on Dictum

As attorneys, we know that “[w]hat is at stake in distinguishing holding from dictum is that a dictum is not authoritative.  It is the part of an opinion that a later court, even if it is an inferior court, is free to reject.”[i]  Dicta is often found when “the passage was unnecessary to the outcome of the earlier case,” “the passage was not an integral part of the earlier opinion,” or “the passage was not grounded in the facts of the case.”[ii]  “All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it [was] not . . . part of the decision that resolved the case or controversy on which the court’s jurisdiction depended (if a federal court),” and therefore should not bind future courts.[iii] 

How can we know whether a court will deem a statement binding precedent or dictum?  Although courts have given various verbal formulations for recognizing dictum, there is no singular definition.  Instead, “[l]ike obscenity,” courts seemingly “know it when they see it.”[iv]  But not all Ninth Circuit judges see “dictum” when looking at the same statement.[v] 

For example, some Ninth Circuit judges define “dictum” as “a statement made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential.”[vi]  These judges point out that this definition is the most widely accepted, and can be found in Black’s Law Dictionary, prior Ninth Circuit panel decisions, and Supreme Court opinions.[vii]  Moreover, as Article Three judges, they feel that only their decisions on cases and controversies, rather than every statement “that ends up in F.3d” constitutionally can be the law of the circuit.[viii]  Some of these judges make an exception, however, for what would otherwise be dicta, if the unnecessary statements were issued by an en banc court to “provide[] guidance to future panels.”[ix]

Other judges have advocated abandoning the rule a that “a later panel is free to ignore statements in an earlier opinion . . . if the later panel concludes that the earlier ruling is not necessary to the result reached.”[x]  These judges believe that defining dicta as statements “not necessary to the court’s decision” is unworkable because “judges often disagree about what is and is not necessary to the resolution of a case.”[xi]  In addition, such a definition introduces “uncertainty into the law of [the] circuit” because “[p]anels often confront cases raising multiple issues that could be dispositive” and “yet find it appropriate to resolve several, in order to avoid repetition of errors on remand or provide guidance for future cases” or “find it appropriate to offer alternative rationales for the results they reach.”[xii]  Rather than allow much of the law of the circuit to be put in doubt, these judges would “hold, instead, that where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.”[xiii] 

In Barapind, a majority of the Ninth Circuit en banc panel endorsed this second, narrow definition of dictum and correspondingly expansive definition of what constitutes circuit law.[xiv]  Despite this, a few three-judge panels have continued to state that the definition of dictum remains unsettled.[xv]  Pursuant to the definition adopted in Barapind, however, that case’s statement about dictum is the law of the circuit. 

In sum, it can be difficult to predict which statements a court will deem dicta.  The meaning of “dictum,” like “obscenity,” depends on the relevant community’s standards, which tend to change over time.[xvi]  The community of the Ninth Circuit has endorsed both broad and narrow views of “dictum,” with some recent opinions suggesting that the court has been leaning towards a narrower interpretation of the word.  But because the standard is subject to change, rather than assuming that we know dictum when we see it, we may want to check current case law and authority to be sure that we understand the operative standard in the court where we are practicing. 

Linda C. Klein is a litigation associate at Irell & Manella LLP.  She received her doctor of jurisprudence from UCLA Law School in 2009.