In a concurrence to one of the Wisconsin Supreme Court’s blockbuster opinions from the 2024-25 term, SEIU Healthcare Wis. v. WERC, 2025 WI 29, 416 Wis. 2d 688, 22 N.W.2d 876 (Dallet, J., concurring), Justice Dallet called on the Court to reevaluate Wisconsin’s current—and oft-cited—approach to statutory interpretation as set forth in State ex rel. Kalal v. Cir. Ct. Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110.
Kalal created a textualist, two-step methodology for interpreting statutes that prioritizes certain sources of meaning (intrinsic) over others (extrinsic) on the ground that extrinsic sources may be unreliable. Under Kalal’s first step, a court attempts to ascertain the plain meaning of the statute. In doing so, it may only consult intrinsic sources, such as the statute’s language, scope, structure, purpose, statutory history, and closely-related statutes. If, at the end of step one, the court concludes the statute’s meaning is unambiguous, it applies the statute as written without consulting extrinsic sources. If, however, the statute is ambiguous—meaning it is capable of two or more reasonable interpretations—the court proceeds to step two, where it expands its inquiry and considers extrinsic sources like legislative history.
In SEIU Healthcare, Justice Dallet criticized both Kalal’s “basic structure” and its application. 2025 WI 29, ¶54 (Dallet, J., concurring). According to Justice Dallet, Kalal’s basic two-step structure is illogical and unjustifiably requires courts to exclude relevant extrinsic information from consideration. Id., ¶¶57-58. Kalal itself acknowledges that extrinsic sources may be relevant to a statute’s meaning—that is precisely why Kalal directs courts to consult extrinsic sources at step two and to confirm a plain meaning interpretation at step one. Id., ¶¶52, 56-57. Yet Kalal simultaneously directs courts to exclude extrinsic sources from consideration if the statute’s meaning is clear based solely on intrinsic sources, even when extrinsic sources cast doubt on that very conclusion. Id. In Justice Dallet’s view, concerns over the unreliability of extrinsic sources do not justify ignoring them entirely, thereby sacrificing interpretative accuracy. Id., ¶59. If extrinsic sources, such as legislative history, are reliable enough to consider at step two, then why not also consider them at step one? See id. A court could address reliability concerns by simply weighing those sources differently. Id., ¶60.
Justice Dallet likewise criticized Kalal in practice. She characterized Kalal’s formalistic requirements as distracting: instead of focusing on what a statute means, courts and practitioners become distracted by Kalal’s focus on labelling a statute ambiguous or unambiguous, or a source intrinsic or extrinsic. Id., ¶61. Justice Dallet further explained that Kalal requires courts to engage in a fiction in which they state that they have not considered extrinsic sources, even when the parties have presented those sources to the court. Id., ¶¶63-64. A court cannot unsee what it has seen. And this fiction comes at a cost: it obscures the true considerations underlying a court’s opinion. Id., ¶63.
In Kalal’s place, Justice Dallet proposed a “more comprehensive” and “holistic” approach to statutory interpretation. Id., ¶65. Although the concurrence did not extensively detail a proposed methodology, it stated that, like Kalal, courts would begin with the text of the statute, which is the best indicator of a statute’s meaning. Id. From there, courts would consider relevant sources—intrinsic and extrinsic alike—regardless of a statute’s ambiguity, while giving due consideration to each source’s limitations. Id.
Notably, Justice Dallet’s concurrence was joined by three other Justices. A four-Justice writing is typically considered binding precedent. However, the concurrence expressly disclaimed that it was overruling Kalal or binding future courts, explaining that the parties in SEIU Healthcare did not ask the Court to reexamine Kalal. See id., ¶¶51, 54. Nevertheless, the concurrence sends a strong signal that a majority of the Court is ready and willing to restructure, or perhaps displace entirely, Kalal’s framework.
On August 21, 2025, the Wisconsin Labor & Industry Review Commission (“LIRC”) accepted the invitation and filed a petition for review that asks the Court to “revisit and modify” Kalal. The petition arises from a contested case hearing before LIRC that concerned whether an employee was covered by Wisconsin’s unemployment compensation insurance statute, or whether he instead fell within the statute’s exception for direct sellers of “consumer products.” Wis. Stat. § 108.02(15)(k)16. Whether the employee was excepted from coverage turned on whether he sold “consumer products.” However, the statute does not define “consumer products.” In resolving the meaning of the phrase, the court of appeals in Abby Windows, LLC v. Labor & Indus. Rev. Comm’n, 2025 WI App 50, slip. op. (publication recommended), consulted dictionary definitions of the terms “consumer” and “product” in isolation and concluded that “consumer products” unambiguously covered the products the employee sold. Because the court concluded the statute was unambiguous, it did not consider a variety of sources. These sources included the statute’s express policy statement, Wis. Stat. § 108.01, which embodies a strong public policy in favor of compensating the unemployed. According to the court, the policy statement could only be used to resolve ambiguity. The court also did not consider a state representative’s letter in the statute’s drafting file that revealed that the statute was directly patterned after a federal statute, a proposed federal regulation that defines the phrase “consumer product” in the federal statute, and a federal case that interpreted the phrase’s meaning—each of which the court deemed “extrinsic” to the text under Kalal.
LIRC’s petition presents as appropriate a vehicle as any for revisiting and modifying Kalal. The court of appeals’ opinion highlights Justice Dallet’s criticisms of Kalal, including Kalal’s arbitrary distinctions and the difficulties of applying its framework. And the panoply of relevant sources of meaning identified above would be useful in illustrating any new methodology. It is entirely possible that the Court could grant LIRC’s petition, retain Kalal, and reverse the court of appeals’ opinion by concluding that it simply misapplied Kalal’s framework (an argument LIRC also makes in its petition). Either way, a decision on the petition is imminent and, if granted, practitioners should expect new guidance on statutory interpretation this term.
Stafford Rosenbaum LLP is a full-service law firm with two convenient office locations in Madison and Milwaukee, Wisconsin. Over 145 years of dedication to businesses, governments, nonprofits, and individuals has proven that effective client communication continues to be the heart of our practice.
