Service Employees International Union Healthcare Wisconsin v. Wisconsin Employment Relations Commission, 2025 WI 29, 6/27/25, on bypass from the court of appeals; case activity
In a unanimous non-criminal appeal, four justices issue a concurrence signaling their willingness to revisit Wisconsin’s method of statutory construction as set forth in Kalal.
We know our readers may be scratching their heads as to why we are covering this somewhat high-profile non-criminal case involving Act 10. As is sometimes the case, however, the separate writings of the justices are important reading for legal practitioners in our practice area. Notably, a closer look beneath this unanimous decision reveals a court potentially ready to effect consequential changes to settled rules of statutory construction in Wisconsin.
Here, four justices–Dallet, A.W. Bradley, Karofsky, and Protasiewicz–all sign on to a lengthy concurrence (authored by Dallet) raising serious questions about one of Wisconsin’s most-cited appellate cases: State ex rel. Kalal v. Circuit Court for Dane County, which has dictated the standard approach to questions of statutory construction since its issuance in 2004. Kalal, as everyone knows, mandates a two-step analytical process prioritizing a textualist philosophy. As Justice Dallet summarizes the broad understanding of Kalal:
Step one, consider the text and other sources intrinsic to the law itself like context and structure (“intrinsic sources”). If the meaning appears clear, we may stop there, or go on to “confirm” that plain-text interpretation by using
sources extrinsic to the law itself like legislative history (“extrinsic sources”). Step two, if the statute is labeled ambiguous after step one, consider extrinsic sources to resolve the ambiguity.
(¶52).
However, the concurring majority identifies “at least two problems with Kalal’s two-step approach: one with its basic structure, and another with its application.” (¶54). As to structure, Justice Dallet’s main criticism is Kalal’s emphasis on what can be rigid textualism on step one, which “tells us we can sometimes ignore relevant evidence of statutory meaning.” (¶56). She therefore begrudges an interpretative technique which renders otherwise “relevant” information (extrinsic information like legislative history) “irrelevant” simply because the text is allegedly clear enough to avoid resort to these helpful sources of meaning. (Id.). Justice Dallet also points out that debates over the interpretation of Kalal’s methodology have swallowed the real question at issue in such cases, which should be focused on “what the statute means.” (¶61).
The second problem identified by the concurrence is that it encourages semantic gamesmanship and that, in the concurrence’s view, the Kalal test can be, and often is, distorted to reach a particular result, regardless of actual statutory meaning. (¶62). Justice Dallet and the concurring justices therefore ask for a “more comprehensive” and “holistic” method of statutory interpretation. (¶65).
Justice R.G. Bradley, in her own concurrence, harshly attacks this viewpoint, as framed by Justice Dallet, and cautions that “[s]hould three more justices adopt her methodology, the rule of law shall be consigned to burn in perdition’s flames.” (¶47).
We therefore bring this dispute to our readers’ attention, not merely to rubberneck at the harsh rhetoric employed by the justices, but to point out that a majority of the Court has seemingly spoken for overruling Kalal and replacing it with a more holistic form of textual interpretation. If the Court follows through on this in a future case it would be a monumental change in our law; accordingly, litigants pursuing statutory construction challenges must be aware of this new line of potential argument and the justices apparent willingness to weigh in on whether Kalal should remain the law in Wisconsin.
