By John E. Cutler
Within our adversary system, the judicial branch resolves cases based on evidence and arguments presented by opposing parties.[i] As a general matter, courts do not look beyond the parties’ arguments to determine whether there might be other issues or arguments that could have been raised for or against a matter presented for decision.[ii] This dynamic results in appellate decisions that are focused on resolving the dispute between the parties, without a plenary discussion of all potential issues or applications of the various statutes, regulations, common law principles, or public policies potentially at issue.
Given the narrow, dispute-resolution focus fostered by our adversary system, it is not uncommon for an appellate decision to include a phrase or sentence that is inconsequential to the matter at hand but dispositive in another legal context. At other times, the parties’ failure to fully address an issue may cause an appellate court to resolve that issue briefly and without substantial analysis. This article aims to help lawyers in dealing with such precedent predicaments.
These byproducts of the adversary system can present a predicament for lawyers and judges in later cases: precedent. Although the adversary system requires resolution of cases on the record presented, the rule of vertical stare decisis means that published appellate decisions are treated as binding precedent for lower courts. Whether language in an appellate opinion was central to the decision or only an afterthought, zealous advocates are sure to latch onto every word in a published opinion to deploy it in support of arguments on behalf of their clients.[iii] Likewise, lower courts will strive to be faithful to precedent by giving legal effect to language in appellate decisions, whether addressed in a single sentence or a lengthy discussion.
The result of this predicament may later cause the Supreme Court to “reframe the central issue” in the case before it.[iv] As the Court explained in Allen v. Campbell, it was “understandable that the parties and the district court treated [the statute] as bearing on subject matter jurisdiction because this Court essentially said so forty years ago. . . . But a close reading of [our earlier decision] reveals that we misspoke . . . .”[v] It can be hard to know whether an appellate court “misspoke,” but lawyers have at least a few options when they suspect a line from a decision was not intended to govern the issues presented in their case.
The first question to answer when evaluating language from an appellate decision is whether the language is “dictum and not controlling.”[vi] When a “statement” in an appellate decision was “not necessary to decide the issue presented to the appellate court,” the statement is dictum.[vii] Establishing that unfavorable language was dicta should be the first line of defense when presented with a statement from an appellate decision that is adverse to a client’s interest. But lawyers would do well not to stop there. Dictum is like an idea previously planted in the court’s awareness that may become controlling if a court later finds it persuasive.[viii] Thus, the tools for dealing with what appears to be an adverse precedent are also relevant in addressing adverse dicta.
Practice Ideas for When You Suspect the Appellate Court “Misspoke”
In some cases, a statement in an appellate decision cannot easily be written off as dictum. For example, in Matter of Estate of Smith, the Idaho Supreme Court rejected a party’s request for attorney fees under “the Trust and Estate Dispute Resolution Act” (“TEDRA”), Idaho Code Sections 15-8-101 to 15-8-305.[ix] The Court’s brief analysis of the issue follows:
The statement that failure to “file [the] initial petition for probate pursuant to TEDRA” renders the case “not a TEDRA proceeding” appears to be necessary to the Court’s decision denying an award of TEDRA fees and costs.[xi] On the other hand, the brevity of the analysis prompts a question of the intended scope of the Supreme Court’s decision on this issue. Using Matter of Smith as an example, the remainder of this article addresses three areas of inquiry for counsel faced with a short statement in an appellate case that appears controlling at first blush.
1. Evaluate Consistency with Other Law
The first area of inquiry when confronting stray language in an opinion that appears to control an issue, is to investigate whether there are other lines of conflicting authority in statute, regulations, or cases.
Courts do not hide elephants in mouseholes. Although an appellate court’s statement may appear unequivocal and necessary to a decision, if that statement is not accompanied by any reasoning distinguishing it from a prior line of cases or the clear text of the statute, there is a good argument to preclude application of that statement to other cases.
As an example of this, the TEDRA pleading requirement embraced in the terse holding in Matter of Smith, appears to conflict with the language of Idaho Rule of Civil Procedure 54(e)(4)(A) providing that it is “not necessary for any party in a civil action to assert a claim for attorney fees in any pleading” other than a default judgment.[xii] Similarly, in Straub v. Smith,[xiii] the Idaho Supreme Court held that because a case did “not involve a default judgment . . . to require that attorney fees be pleaded in this case would be contrary to I.R.C.P. 54(e)(4).” Finally, the text of TEDRA contains no express pleading requirement and instead includes text indicating that it “shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, unless such statute specifically provides otherwise.”[xiv] In other words, the rules of civil procedure, existing precedent on attorney fees, and the text of TEDRA itself all suggest that a party is not required to specifically invoke the statute in a pleading as a precursor to the statute’s application. Instead, if a case fits the broad category of cases involving “declaration of rights or legal relations with respect to . . . [t]he resolution of any other case or controversy that arises under the Idaho Code and referenced judicial proceedings under this chapter,” then discretionary attorney fees may be awarded – whether or not TEDRA was invoked in an initial pleading.[xv]
In sum, when faced with an unfavorable quotation not easily explained as dicta, the first line of defense is to look for other law contradicting the unfavorable statement. If many other legal sources contradict the unfavorable statement, a court will be forced to choose which to follow. And there is a fair chance the court will elect to follow the more established and thoroughly reasoned line of authority over a single line from an opinion that fails to acknowledge, distinguish, or repudiate the other line of authority.
2. Investigate Level of Briefing to the Appellate Court
The second area of inquiry involves a lesser-known tool available to lawyers. The University of Idaho College of Law maintains a digital archive of not only the briefs but also the record in cases decided by the Idaho Supreme Court. This archive can be accessed at https://digitalcommons.law.uidaho.edu/iscrb/ and it allows a party to investigate the degree to which a particular issue was briefed to the Idaho Supreme Court. When faced with an unfavorable statement in an Idaho Supreme Court decision, reviewing the briefs on the issue can be informative. For example, in Matter of Smith, the TEDRA attorney fee issue was not briefed in any detail. In fact, the only mention of TEDRA was a parenthetical citation to the statute as part of a one-line request for fees in the Respondent’s Brief.[xvi] Although the Appellant opposed an award of attorney fees, the reply brief did not address TEDRA at all.[xvii]
When the Supreme Court record demonstrates a lack of attention to an issue and the statement in an appellate decision mirrors the parties’ lack of analysis, it is easier to ask a lower court to evaluate the issue as a matter of first impression rather than rely on an adverse stray statement in a published decision. The adversary system is premised on the parties thoroughly addressing key issues in their briefing, so a decision made without briefing is not likely to reflect the conclusion that would have been reached on full briefing and argument.
3. Appeal to Policy Implications
If adverse language in an appellate decision is consistent with other precedent and was thoroughly addressed by the opposing parties, it probably doesn’t matter whether there are negative policy implications of applying the stated rule to other cases. But policy implications may take on more significance if either the language conflicts with other law or if the parties failed to meaningfully brief the issue in the prior case. This is particularly true when the issue involves a matter of common law, or if the governing statute or regulation is ambiguous.
Returning to the example of Matter of Smith, as discussed previously, the language requiring TEDRA be included in the pleading does not appear in the text of the statute, it runs counter to other precedent, and the issue was not briefed by the parties. As such, the policy implications of requiring TEDRA be included in a pleading may be relevant to whether the language in Matter of Smith was intended as holding or as a resolution of the issue limited to the facts in Matter of Smith.
Among the aims of TEDRA is to provide “nonjudicial methods for the resolution of estate and trust matters by agreement.”[xviii] But a pleading rule adopted by the Supreme Court creates a perverse incentive for a party to rush to the courthouse to file a declaratory suit that either affirmatively alleges or deliberately omits an invocation of the TEDRA fee regime. Such a pleading requirement would also have the downside of creating ambiguity about what would happen if the opposing party filed a counterclaim making the opposite election (either for or against TEDRA fees) in the counterclaim. Nothing in the text of TEDRA requires the pleading rule, so even modest policy implications of such a rule could be a basis for limiting the pleading rule from Matter of Smith to the facts of that case.
Whether the language from an appellate decision is favorable or unfavorable to your client’s position, it is important to evaluate the degree to which a brief statement in an appellate decision can fairly be considered as controlling precedent that governs in other cases. Establishing whether the language is necessary to a holding is the first step. But even when the language appears necessary to the outcome, there is more work that can be done to evaluate the degree to which the language was intended to control other cases beyond the one at issue. Evaluating whether there is a conflicting line of authority, whether the parties meaningfully briefed the issue, and what the policy implications would be if the rule were broadly adopted, can help lawyers make arguments for or against the broader application of a “holding” that received limited attention in an appellate court decision.
Author’s Note: The general issues addressed in this article were the subject of an Appellate Section CLE presented earlier this year by John E. Cutler and Stephen Adams.
John E. Cutler is the Chairperson of the Appellate Practice Section and an associate at Parsons Behle & Latimer specializing in complex civil litigation and appeals. The author’s views and opinions in this article are his own and do not reflect those of his firm.
[i] Cf. Heinze v. Bauer, 145 Idaho 232, 238, 178 P.3d 597, 603 (2008) (identifying the adversary system).
[ii] See, e.g., Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004) (explaining the court will look to the issues identified in the opening brief); State v. Doe, 144 Idaho 534, 535, 164 P.3d 814, 815 (2007) (“Generally the Court will not consider on appeal any issues that are not raised by the parties.”).
[iii] See Heinze, 145 Idaho at 238, 178 P.3d at 603.
[iv] Allen v. Campbell, 169 Idaho 613, 617, 499 P.3d 1103, 1107 (2021).
[vi] State v. Hawkins, 155 Idaho 69, 74, 305 P.3d 513, 518 (2013).
[viii] E.g., Farm Dev. Corp. v. Hernandez, 93 Idaho 918, 921, 478 P.2d 298, 301 (1970).
[ix] Matter of Est. of Smith, 164 Idaho 457, 482, 432 P.3d 6, 31 (2018).
[xi] See id.
[xii] I.R.C.P. 54(e)(4)(A), (B).
[xiii] Straub v. Smith, 145 Idaho 65, 70, 175 P.3d 754, 759 (2007).
[xiv] Idaho Code § 15-8-208(2).
[xv] Compare Idaho Code § 15-8-201(1)(b) (providing a broad basis for declaratory relief in trust and estate disputes, as quoted in the text), with Idaho Code § 15-8-208(2) (providing discretionary attorney fees in “all proceedings governed by this chapter”).
[xvi] https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/7194/ (at 12, 40 of the brief after downloading).
[xvii] https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/7195/ (at 35 of the brief after downloading).
[xviii] Vouk v. Chapman, No. 48978, 2022 WL 17479970, at *10 (Idaho Dec. 7, 2022).