Lawyers are familiar withthe distinction between acase’s holding, also called

its ratio decidendi, and its dicta.1

The ratio decidendi is that part ofa cour t’s opinion that judgesdeciding later cases are requiredto follow, and the dicta generallyare the statements from the courtthat do not have to be followed.There are two types of dicta, how-ever: judicial dicta and obiterdicta. The former carry greaterauthority than what are com-monly referred to as mere dicta;the latter are mere dicta. The fail-ure of some judges to understandthe distinction between judicialdicta and obiter dicta has led tosome confusion in case law.

Obiter dicta are “by the way”statements.2 Since courts usuallydo not give as seri-ous considerationto the statementsthey make in pass-ing as they do tothe ratio decidendi,the statements donot constitute thebinding part of ajudicial precedent.3 Thereforeobiter dicta are viewed as thosestatements by a court that canbe safely ignored. But judicialdicta are the product of a com-prehensive discussion of legalissues and therefore should be

granted greater weight thanobiter dicta. Judicial dicta shouldbe followed unless they are erro-neous or there are particularlystrong reasons for not doing so.4

Among recent cases one hadto look outside California to findcourts that follow the explicitnomenclature of obiter dicta andjudicial dicta.5 Only one Californiacase has used the correct nomen-clature: People’s Lumber Companyv. Gillard,6 which was decided in1907. People’s Lumber also is theonly California case that explicitlynotes the distinction betweenobiter dicta and judicial dicta. Thecourt in People’s Lumber statedthat a court’s statements in re-sponse to issues directly pre-sented and argued by attorneysshould be classified as judicialdicta as opposed to obiter dicta.

Later California cases gener-ally have discussed dicta withoutidentifying the two types byname. In People v. Lozano, a 1987California case, the court notedthat “‘[a] statement which doesnot possess the force of a squareholding may nevertheless be con-sidered highly persuasive, par-ticularly when made by an able

court after carefulconsideration, or inthe course of anelaborate review ofthe authorities, orwhen it has beenlong followed.’”7

The Lozano courtwas referring to

judicial dicta. So was the courtin County of Fresno v. SuperiorCourt, which observed in a 1978decision, “Dicta are not to beignored. Dicta may be highly per-suasive, particularly where madeby the Supreme Court after that

court has considered the issueand deliberately made pro-nouncements thereon intendedfor guidance of the lower courtupon further proceedings.”8

Judicial dicta generally arestatements reflecting a court’sthorough analysis of an issue.9

More specifically, as noted byPeople’s Lumber, courts makestatements that are judicial dictawhen responding to an argumentmade by attorneys in the case,10

“especially where,” according toan English authority, “had thefacts been otherwise, [the court’sresponse] would have formedpart of the ratio.”11 Judicial dicta

also arise when an opinion pro-vides guidance to the lower courtupon remand12 or to courts aboutfuture conduct.13

In United Steelworkers ofAmerica, Local 8599, AFL-CIOv. Board of Education,14 the courtfailed to make the distinctionbetween judicial dicta and obiterdicta and as a result conflatedratio decidendi and judicial dicta.At issue was a part of an opinionfrom the California SupremeCourt. In response to an argu-ment that the passage in ques-tion was dicta, the court of appealdecided that the passage was infact ratio decidendi.15 The court of

The Distinction between JudicialDicta and Obiter Dicta

Unlike obiter dicta,

which are not

binding, judicial

dicta carry great

authority

Robert G. Scofield isa contract researchand writing attorneyin Woodland,California.

By Robert G. Scofield

p r a c t i c e t i p s

LOS ANGELES LAWYER / OCTOBER 2002 17

RIC

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ING

appeal cited Paley v. Superior Court16 for theproposition that part of an opinion respon-sive to an argument raised by the attorneysand intended for guidance for the trial courtand the attorneys upon a new hearing “prob-ably cannot be put aside as mere dictum.”17

A mere dictum is an obiter dictum, not ajudicial dictum. But those unfamiliar with thetwo types of dicta could conclude that a propo-sition of law that is not a mere dictum mustbe a holding. Such reasoning takes the deduc-tively valid form known as disjunctive syllo-gism.18 What the court did not realize, how-ever, was that there was a third alternative;that the statements in question were neitherobiter dicta nor a holding but were judicialdicta. Perhaps the court could have avoidedthis confusion if it had more carefully studiedPeople’s Lumber, one of the cases it cited.19

However, the result is that United Steelworkershas developed an unorthodox view of ratiodecidendi. It recognized as a holding whatother courts and scholars would clearly clas-sify as dicta.

Applicability of Judicial Dicta

An example of judicial dicta eventuallybecoming a ratio decidendi occurred in thecases of In re Prewitt20 and In re Olson.21 Bothcases were habeas corpus actions litigatingthe right of prisoners to gain access to docu-ments given to prison authorities that con-tained statements by third parties that hadbeen used to deny the prisoners release onparole. In Prewitt, the California SupremeCourt stated that prisoners should be givenaccess to these documents pursuant to prin-ciples enunciated in Morrissey v. Brewer, aU.S. Supreme Cour t case.22 However,Prewitt’s petition for a writ of habeas corpuswas denied because his parole rescissionoccurred 14 months before the date thatMorrissey was to apply to cases like Prewitt’s.23

The ratio decidendi of Prewitt is that therights provided by Morrissey apply only toparole revocation or rescission hearings heldafter June 29, 1972.24

However, the Prewitt court expounded,in the form of judicial dicta, its view of therights that prisoners and parolees were enti-tled to in parole rescission and revocationhearings. The court clearly indicated that itsstatements on prisoner rights were dicta bythis statement: “We are nevertheless con-strained to remark, although the issue is notnow before us….”25 The supreme court fur-ther noted:

At a minimum, and subject to limitationonly when an informant will beexposed to an undue risk of harm, aninmate should be provided with a copyof any document submitted pursuant tosections 3022 and 3042, and should be

afforded a reasonable opportunity torespond thereto, either in person orin writing. Nothing less will satisfystandards of fundamental fairnessrequired by the due process clause.26

These judicial dicta in Prewitt were tobecome a holding in Olson.27

The Olson court stated that “the rationaleof Prewitt” is that a policy of not giving doc-uments to inmates is unfair because an inmatecannot prepare his or her case or challengefalse or inaccurate information unless theinmate learns what information prison officialsare considering in determining the length ofincarceration or whether to grant parole.28

The Olson court stated:We are disposed to accept the forego-ing rationale of Prewitt as applicable tothe present case even though the state-ments alluded to do not possess the forceof a square holding. They are persua-sive and were concurred in by thewhole court after careful consideration.Accordingly, they are entitled to greatweight.29

In California, the question of the authori-tative status of judicial dicta is particularlyimportant. This is due to Rule 976.1 of theCalifornia Rules of Court, which allows theCalifornia Court of Appeal and the appellatedivision of the superior court to certify onlya part of an opinion for publication in the lawreports. It is theoretically possible for a courtto issue an opinion in which the ratio deci-dendi appears only in its unpublished por-tion. Does that mean that the part of the opin-ion that is published can be dismissed asmere dicta, with no precedential value what-soever? The case of People v. Trout high-lights this dilemma.30

In Trout, the defendant, who had a priorconviction, was convicted of burglary. Thecourt of appeal reversed Trout’s conviction onthe ground that he was denied his constitu-tional right to represent himself.31 Howeverthe part of the opinion presenting the court’sreasoning in support of reversing the con-viction was not published pursuant toCalifornia’s partial publication rule.32 Thepublished portion of the opinion addressedthe defendant’s claim that his prior convictioncould not be used to enhance his sentence onthe ground that he had not been advised ofthe constitutional rights he relinquished whenhe entered the guilty plea that resulted inthe prior conviction. The court of appealannounced that it would address this issue forthe guidance of the trial court should thedefendant be convicted after a retrial,33 and theremainder of the published opinion containsa thorough discussion of the court’s views onthe issue. Several cases are cited in the opin-ion, and the Trout court discussed a conflict

of California authority regarding the issue.34

The California Supreme Court correctlyholds that a statement is a dictum when acourt has already decided to reverse a judg-ment before reaching the issue the statementin question addresses.35 Thus all of the propo-sitions of law contained in the Trout opinion,as it appears in its published form, are dicta.Insofar as the court’s discussion was a thor-ough one that gave future guidance to the trialcourt, the dicta are classified as judicial dicta.Trout is an example of a case published underthe partial publication rule that has no truepublished ratio decidendi.36 Does that meanthat California practitioners can disregardthe Trout case? Given that the opinion is dicta,does it lack any authority whatsoever? Ananswer of yes to this last question would con-stitute a very good reason for at least themodification, if not the abolition, of California’spartial publication rule. However, the cor-rect answer to the question is no, because judi-cial dicta ordinarily have to be followed.

Weight and Authority

Courts have discussed the authoritative-ness of judicial dicta, noting that they are“entitled to substantial weight,”37 “entitled togreat weight,”38 “generally entitled to weightand should be followed unless found to beerroneous,”39 “entitled to much greater weightthan mere obiter dictum and should not belightly disregarded,”40 or “should be followedin the absence of some cogent reason fordeparting therefrom.”41 According to anEnglish case, judicial dicta have a weightnearer to a ratio decidendi than to obiter dictaand “carr[y] [their] own intrinsic authority.”42

To say that judicial dicta should be fol-lowed unless clearly erroneous distinguishesjudicial dicta from a holding, at least withrespect to following the precedents of highercourts, because lower courts are required tofollow even the erroneous holdings of highercourts.43 It seems reasonable that the author-ity of various judicial dicta might be weighteddifferently depending upon the thorough-ness of the analysis that leads to the dicta.44

At a minimum, a judicial dictum should begiven great weight because it is an “expres-sion emanating from the judicial conscienceand the responsibilities that go with it.”45 If acourt’s judicial dicta are the product of a thor-ough analysis of an issue, the dicta should betreated as having almost as much authority asa ratio decidendi.

There are some cases in which judicialdicta will have as much authority as any state-ment emanating from a court can have. Forexample, the only statements from the U.S.Supreme Court declaring that arrest war-rants allow police to enter a house are dicta.46

No one, from a rookie police officer to a griz-

18 LOS ANGELES LAWYER / OCTOBER 2002

http://www.chapman.edu/law

zled public defender, will doubt for a minutethat an arrest warrant gives the police theright to enter a private residence in order tomake an arrest. There is even a theory toexplain why an arrest warrant empowers thepolice to enter a house. According to Paytonv. New York, “If there is sufficient evidence ofa citizen’s participation in a felony to per-suade a judicial officer that his arrest is jus-tified, it is constitutionally reasonable torequire him to open his doors to the officersof the law.”47 According to Steagald v. UnitedStates, “Because an arrest warrant authorizesthe police to deprive a person of his liberty,it necessarily also authorizes a limited inva-sion of that person’s privacy interest when itis necessary to arrest him in his home.”48

The existence of the theory bolsters the factthat there is no real doubt that an arrest war-rant empowers the police to enter a house inorder to make an arrest. Yet the fact remainsthat the ultimate authority for this propositionof law is still based upon dicta.

It is instructive to think about what itwould take for a case to actually have as itsratio decidendi the proposition that an arrestwarrant gives the police the power to enter aprivate residence in order to make an arrest.An attorney arguing to the contrary wouldrisk his or her credibility by doing so. Indeed,the issue that has concerned the courts iswhether the police can enter a house to makean arrest without a warrant.49 Given the cur-rent state of our legal culture, it is self-evidentthat an arrest warrant authorizes the police toenter a house. Thus, it is not surprising to findthat the most unquestionable propositions oflaw sometimes will be expressed by judicialdicta.50

Finally, one should not overlook the pos-sibility that the dicta one wishes to use,whether judicial or obiter, have evolved intoa ratio decidendi in subsequent cases. Thecourt of appeal in People v. Fields points to anexample of this type of evolution,51 as does thefact that the judicial dicta in Prewitt becamethe holding in Olson.

There is a research technique that canbe used to track if judicial dicta have becomea ratio decidendi. Both the official and unof-ficial reports of a case should be compared.Ver y often a case published in West’sCalifornia Reporter will have more headnotesthan the same case published in the officialreports. This is because the unofficial reportshave a tendency to place language in an opin-ion that sounds like black-letter law into aheadnote even though the proposition of lawis fairly far removed from the ratio decidendi.If one finds a dictum in an official report of aparticular case, and that dictum is not foundin a headnote in the official report, then oneshould look in the California Reporter version

20 LOS ANGELES LAWYER / OCTOBER 2002

Judgments EnforcedJudgments EnforcedLaw Office of Donald P. Brigham

23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653P: 949.206.1661F: 949.206.9718

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of the case to see if the dictum is found in theunofficial headnotes. If it is, one can thenShepardize or Key Cite the headnote to seeif the dictim has become a holding in a latercase. ■

1 “Holding” is an American term referring to the ratiodecidendi. See Jan M. Broekman, Analogy in the Law,in LEGAL KNOWLEDGE AND ANALOGY: FRAGMENTS OF

LEGAL EPISTEMOLOGY, HERMENEUTICS AND LINGUISTICS

217, 231 (Patrick Nerhot ed., 1991). See also Krupnickv. Hartford Accident & Indem. Co., 28 Cal. App. 4th 185,199 (1994) (equating ratio decidendi to holding).2 See RUPERT CROSS & J.W. HARRIS, PRECEDENT IN

ENGLISH LAW 41 (4th ed. 1991) [hereinafter CROSS &HARRIS].3 See id. at 40-41.4 The types of situations in which judicial dicta appearthat are discussed in this article are not exclusive.Other types are suggested by the discussion in CROSS

& HARRIS, id. at 77-81.5 See State v. Fahringer, 666 P. 2d 514, 515 (Ariz. 1983);American Country Ins. Co. v. Cline, 722 N.E. 2d 755, 762(Ill. 1999); State v. Rainier, 103 N.W. 2d 389, 396 (Minn.1960).6 People’s Lumber Co. v. Gillard, 5 Cal App. 435, 439(1907).7 People v. Lozano, 192 Cal. App. 3d 618, 632 (1987).8 County of Fresno v. Superior Court, 82 Cal. App. 3d191, 194 (1978).9 See Lozano, 192 Cal. App. 3d at 632; Smith v. MountDiablo Unified Sch. Dist., 56 Cal. App. 3d 412, 418(1976).10 See Paley v. Superior Court, 137 Cal. App. 2d 450, 460

(1955); State v. Rainier, 103 N.W. 2d 389, 396 (Minn.1960); see also Regina v. Seymour, 77 Crim. App. 215,223 (H.L. 1983) (passage not obiter when “essential tothe reasoning leading to the rejection of Mr. Littman’sargument”).11 Brunner v. Greenslade, [1971] Ch. 993, 1003 (1970).12 See County of Fresno, 82 Cal. App. 3d at 194; Paley,137 Cal. App. 2d at 460.13 See State v. Fahringer, 666 P. 2d 514, 515 (Ariz. 1983).14 United Steelworkers of Am., Local 8599, AFL-CIO v.Board of Educ., 162 Cal. App. 3d 823 (1984).15 See id. at 834-35.16 Paley, 137 Cal. App. 2d at 460.17 United Steelworkers, 162 Cal. App. 3d at 835.18 A disjunctive syllogism can be expressed as follows:

Premise 1: Either P or QPremise 2: Not PTherefore: Q

19 United Steelworkers, 162 Cal App. 3d at 835; seePeople’s Lumber Co. v. Gillard, 5 Cal. App. 435, 439(1907).20 In re Prewitt, 8 Cal. 3d 470 (1972).21 In re Olson, 37 Cal. App. 3d 783 (1974).22 See Prewitt, 8 Cal. 3d at 473-75 (applying Morrisseyv. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct.2593 (1972)).23 Id. at 477.24 See id. at 476-77.25 Id. at 475.26 Id. at 476.27 See In re Olson, 37 Cal App. 3d 783, 790 (1974).28 Id. at 789.29 Id. (emphasis added).30 People v. Trout, 145 Cal. App. 3d 812 (1983) (partiallyunpublished).31 Id. at 813-14.

32 Id. at 814 n.1.33 Id. at 814.34 Id. at 814-17.35 See People v. Pearson, 42 Cal. 3d 351, 358 (1986).36 See also People v. Harris, 192 Cal. App. 3d 943 (1987).37 Smith v. Mount Diablo Unified Sch. Dist., 56 Cal. App.3d 412, 418 (1976).38 In re Olson, 37 Cal App. 3d 783, 789 (1974).39 American Country Ins. Co. v. Cline, 722 N.E. 2d 755,762 (Ill. 1999).40 State v. Rainier, 103 N.W. 2d 389, 396 (Minn. 1960).41 State v. Fahringer, 666 P. 2d 514, 515 (Ariz. 1983).42 Brunner v. Greenslade, [1971] Ch. 993, 1003 (1970).43 See Campbell v. Allstate Ins. Co., 60 Cal. 2d 303, 307(1963); Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 457 (1962).44 Cf. CROSS & HARRIS, supra note 2, at 77-81.45 State v. Rainier, 103 N.W. 2d 389, 396 (Minn. 1960).46 See Payton v. New York, 445 U.S. 573, 603, 63 L. Ed.2d 639, 100 S. Ct. 1371 (1980). According to theCalifornia Supreme Court, the statement of the U.S.Supreme Court in Payton that an arrest warrant allowsthe police to enter a house is dicta. See People v. Jacobs,43 Cal. 3d 472, 480 n.4 (1987).47 Payton, 445 U.S. at 602-03.48 Steagald v. United States, 451 U.S. 204, 214 n.7, 68 L.Ed. 2d 38, 101 S. Ct. 1642 (1981).49 See, e.g., Payton, 445 U.S. 573; People v. Ramey, 16Cal. 3d 263 (1976).50 Nor should one be surprised by statements like thefollowing in reference to a particular point of law: “Thelaw, although often stated as dicta or appearing as theunstated premise of a related discussion, clearly is con-trary to respondent’s position.” People v. Collins, 59 Cal.App. 4th 988, 995 (1997) (emphasis added).51 People v. Fields, 159 Cal. App. 3d 555, 571 (1984).

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