A Swan Song for Kalal: The Wisconsin Supreme Court Granted Review in a Case That Squarely Asks the Court to Overrule Wisconsin’s Seminal Case on Statutory Interpretation 

By: Caleb R. Gerbitz, Meissner Tierney Fisher & Nichols S.C. 

“Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history.”[1] On May 25, 2004, one month before her elevation to the Seventh Circuit, then-Justice Diane Sykes wrote these words in the Wisconsin Supreme Court’s majority opinion in State ex rel. Kalal v. Circuit Court for Dane County.^[2] Kalal’s embrace of textualism as Wisconsin’s preferred method of statutory interpretation promptly made it a seminal case.

On the short list of Wisconsin Supreme Court decisions that every Wisconsin attorney knows, and can likely quote passages from by memory, Kalal is surely at the top of that list. It was “a watershed decision” when it was issued, and it has since become “the most cited case of modern times.”[3] In the 22 years since Kalal was decided, the Wisconsin Supreme Court has cited Kalal in 422 cases; the Wisconsin Court of Appeals has cited it in 1,117 cases; and appellate advocates have referenced it in no fewer than 3,453 appellate briefs.^[4] And these numbers likely undersell Kalal’s impact since a number of decisions and briefs, instead of citing Kalal, cite opinions that follow the methodology set forth in Kalal. 

Even so, Kalal will be overruled—or at least greatly diminished—next term. 

In June, the Wisconsin Supreme Court granted petitions for review filed by the Department of Workforce Development (“DWD”) and the Labor & Industry Review Commission (“LIRC”) in Abby Windows, LLC v. LIRC.^[5] The issues presented leave little doubt that the court took the case to revisit Kalal. In LIRC’s petition for review, it argued, “This Court should grant this petition and reexamine the Kalal framework for statutory interpretation.”^[6] Meanwhile, DWD’s petition urged the court “to reconsider, overturn, or modify the dictionary-first approach that courts engage in when attempting to follow Kalal, in favor of an investigative, comprehensive approach that gives due consideration to relevant extrinsic sources to interpret a statute’s meaning, conscious of those sources’ limitations.”^[7] In granting both petitions for review, the court signaled its intention to take up the request and revisit Kalal. Although the petitions were granted in a pair of unsigned orders, Justice Rebecca Grassl Bradley, whose term will conclude before the case is heard, registered solo dissents from both orders.^[8] 

In truth, this development is none too surprising. Last term, in Service Employees International Union Healthcare Wisconsin v. WERC (“SEIU”),^[9] Justice Dallet authored a concurring opinion—joined by a majority of the court—expressing her openness to revisiting Kalal.^[10] She “criticized Kalal and some of the cases applying it for adopting an overly rigid and formalistic, rather than holistic, method of statutory interpretation.”^[11] Justice Dallet offered the following as an alternative to Kalal’s approach:

Rather than treat Kalal like an ironclad rulebook of statutory interpretation, I would dispense with its fictions and formalistic labels. Instead, we should embrace the “more comprehensive” and “holistic” approach to statutory interpretation that I have advocated for before. Under that approach, we should of course start with the text of the statute but also be upfront and honest about considering relevant extrinsic sources to interpret a statute’s meaning, conscious of course of those sources’ limitations. Doing that would allow us to focus less on labeling statutes ambiguous or unambiguous or arguing about where a particular source fits in Kalal’s one-size-fits-all hierarchy and more on our real task, interpreting statutes.^[12]

Justice Dallet’s concurrence in SEIU was not a bolt out of the blue. As the prior quote indicates, Justice Dallet, joined by Justice Ann Walsh Bradley and then-Justice Karofsky, penned a number of separate writings in the past opposing Kalal’s framework. In Clean Wisconsin, Inc. v. DNR,[13] for example, she argued that judges sometimes “label a statute ‘ambiguous’” in a pretextual manner so that they can consult relevant legislative history, which Kalal would otherwise mark as off-limits.[14] In James v. Heinrich,[15] Justice Dallet took aim at the court’s reliance on the canons of construction—a tool often favored by textualist judges over legislative history—which she argued are judge-made rules of thumb that are “notoriously malleable” and “just as subjective as any other” tool of interpretation.[16] In a similar vein, in Friends of Black River Forest v. Kohler Co.,[17] then-Justice Karofsky argued that textualism often acts as a “smokescreen,” masking policy-laden judgments: “Empirics and experience tell us that a textualist approach is as susceptible to a result-driven analysis as any of its alternatives. That is because textualism invites the very judicial discretion it claims to oust; it simply shifts that discretion to between the lines.”[18] Accordingly, Justice Dallet’s concurrence in SEIU is significant, not because it critiqued Kalal, but because its criticism of the Kalal framework was joined by a majority of the court—signaling that Kalal is not long for this world.

Although four justices joined Justice Dallet’s concurrence in SEIU, the opinion went out of its way to make clear that “no party asked” it to revisit Kalal, and, therefore, the court in SEIU did “not overrule Kalal.”^[19] Now, with the issue squarely presented in Abby Windows, the court appears primed to take that step.

I offer two caveats for your consideration.

First, there has been some turnover on the court since SEIU. One of the four justices who joined Justice Dallet’s concurrence in SEIU, Justice Ann Walsh Bradley, retired. The prevailing wisdom is that the justice who replaced her, Justice Crawford, shares her predecessor’s enthusiasm for revisiting Kalal. Presumably, Justice-elect Taylor, who will replace the more conservative Justice Rebecca Grassl Bradley, will also be willing to revisit Kalal’s textualist framework. Even so, the presence of two new justices in the presumptive majority could have some meaningful impact on what the new statutory interpretation framework winds up looking like. I suspect the framework the court announces in Abby Windows will look a lot like Justice Dallet’s concurrence in SEIU, but I also would not be surprised if there is some tweaking to incorporate the particular views of Justice Crawford and Justice-elect Taylor.

Second, I also would not be surprised if the court, while overruling Kalal, declines to formally adopt a particular binding framework for statutory interpretation. A few terms ago, in Wisconsin Justice Initiative, Inc. v. WEC,^[20] Justice Hagedorn authored a majority opinion that endorsed an originalist methodology to interpret the Wisconsin Constitution—much like Kalal had endorsed a version of textualism for statutory interpretation decades earlier.^[21] In a concurring opinion, Justice Dallet argued that “an earlier court’s choice of an interpretive methodology like originalism does not bind later courts to use that same methodology.”^[22] She elaborated: 

In closing I note that even if the majority were correct that originalism is our consensus approach to interpreting the Wisconsin Constitution, that approach would nevertheless not be binding in future cases. That is because reliance on a particular method of interpretation in one case doesn’t bind future courts to use that same method in all future cases.

We have never said that our methodological choices bind us in future cases even though we have occasionally assumed so in other contexts. For example, State ex rel. Kalal v. Circuit Court for Dane County and subsequent cases applying it appear to assume that its statutory-interpretation framework is binding. But there are good reasons to doubt that assumption. After all, the United States Supreme Court doesn’t treat prior methodological choices as binding in either statutory or constitutional cases. 

. . . 

We should not pretend that these disagreements are settled merely because four members of the court have, in a few cases, applied a particular method of constitutional interpretation.^[23]

Along the same lines, in Justice Dallet’s SEIU concurrence, while noting that the concurrence did not overrule Kalal, she added that it also did not “purport to bind our court or any other to use any particular methodology when interpreting statutes in the future.”^[24]

For those wondering about the actual dispute in Abby Windows, it is an unemployment insurance (“UI”) dispute. Abby Windows, a home-remodeling company in Waukesha, employed Daniel Tarpey as a door-to-door salesman, selling doors, windows, roofs, gutters, and siding to homeowners.^[25] After Abby Windows terminated Mr. Tarpey’s employment, Mr. Tarpey sought UI benefits.^[26] In the litigation that followed, Abby Windows argued that Mr. Tarpey was not entitled to UI benefits because Wis. Stat. § 108.02(15)(k)16. creates an exclusion for employees who sell “consumer products” door-to-door on a commission basis.^[27] Thus, the issue before the court is whether the products Mr. Tarpey sold—doors, windows, roofs, gutters, and siding—qualify as “consumer products.”

In many respects, Abby Windows is a perfect vehicle for a court interested in revisiting Kalal. Available dictionary definitions support an expansive understanding of “consumer products.” For example, the circuit court referenced a legal dictionary that defines “consumer product” as an “item of personal property that is distributed in commerce and is normally used for personal, family, or household purposes.”^[28] Similarly, the court of appeals referenced several non-legal dictionaries to conclude that “consumer products” refers to “physical or tangible items or objects an individual purchases for that individual’s personal use in some manner.”^[29] Under either of these dictionary definitions, home-improvement goods purchased for installation on a family home fall comfortably within the meaning of “consumer products.”

However, based on the briefing, I gather that the available legislative history may lend itself to a more confined interpretation of “consumer products.” Specifically, LIRC and DWD point to a letter authored by a sponsor of the bill that became Wis. Stat. § 108.02(15)(k)16., remarking that the bill was important to those who sell products for well-known “producers such as Avon Products Inc., Amway, Mary Kay Inc., and Pampered Chef.”^[30] This legislative history arguably suggests that the definition of “consumer products” is limited to highly portable goods like hygiene products and kitchenware—not home-improvement goods like windows and siding.

Depending on how persuasive one finds the legislative history, interpretive methodology may well be determinative in Abby Windows. The dictionary definitions alone support the conclusion that the text is unambiguous, which, under Kalal, would preclude reference to legislative history. But when legislative history is consulted, the interpretation might become a closer call. 

Watch for Abby Windows to be scheduled for oral argument somewhere between November and January, with a decision likely to follow in June or early July of 2027. 

Kalal’s swan song has begun.

Author Biography: 

Caleb Gerbitz is an appellate and civil litigation attorney at Meissner Tierney Fisher & Nichols S.C. Since joining Meissner Tierney in 2022, Caleb has served as appellate counsel on more than two dozen appeals in the Wisconsin Court of Appeals, the Wisconsin Supreme Court, and the Seventh Circuit Court of Appeals. He has also authored more than a dozen amicus briefs filed in Wisconsin’s appellate courts and the United States Supreme Court on behalf of organizations including the Wisconsin Defense Counsel, the Cato Institute, and the Institute for Reforming Government. 

In addition to his practice, Caleb is the Wisconsin State Chair of the American Bar Association’s Council of Appellate Lawyers and co-chair of the Milwaukee Bar Association’s Civil Litigation Section. He serves on the Wisconsin Judicial Council’s Appellate Procedure Committee and authors a Substack column, titled Appellate Approach, which features regular updates on cases in Wisconsin’s appellate courts. Before entering private practice, Caleb clerked for Justice Brian Hagedorn of the Wisconsin Supreme Court.