State v. Gary M.B., 2003 WI App 72, affirmed on other grounds, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding: A court of appeals holding in a case reversed by the supreme court on other grounds, so that this holding was neither “overruled, withdrawn, or modified,” continues to bind the court of appeals. ¶13.
The court of appeals had held under similar circumstances to Gary M.B.’s that defensive use didn’t trigger waiver, Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Ct. App. 1978), but the mandate was then reversed by the supreme court, 96 Wis. 2d 81, 291 N.W.2d 467 (1980), on the ground that the challenged evidence was admissible anyway. The Gary M.B.court of appeals said that its Vanlue (non)waiver holding remained binding, because the decision had been reversed “on other grounds.” (“¶13. Our conclusion on the issue at hand inVanlue has not been overruled, withdrawn, or modified and we are bound to follow it.”) The supreme court did not address this significant procedural issue. More accurately, the majority doesn’t address it; the Chief Justice’s 2-vote dissent does, ¶44 n. 1, tentatively asserting “that when this court reviews a decision of the court of appeals, the court of appeals no longer has precedential value.” Hard to believe we’ve heard the last of this. One thing’s for sure: the court of appeals holding in this case (overruling “on other grounds” doesn’t strip the rest of the decision of precedential effect) remains binding. E.g., State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (only supreme court has authority to modify, or withdraw language from, court of appeals’ decisions); State v. William L. Morford, 2004 WI 5, ¶40 (intimating that this inhibition extends to dicta).)
