In the most recent edition of the Yale Law Journal, Professor Abbe Gluck observes a phenomenon unique to state supreme courts: precedents that bind courts’ interpretive methods. At the U.S. Supreme Court, justices constantly argue about the proper method for interpreting contractual, regulatory, statutory, and constitutional texts. Prof. Gluck observes that in some state courts, including Wisconsin, a single case definitely sets the method by which future judges will interpret legal texts.
The Wisconsin case she refers to is, of course, State ex rel. Kalal v. Dane County Circuit Court (2004), which set a method by which the court would interpret statutes. That method focuses first on the text of the statute, and circumscribes the use of legislative history and other secondary sources.
Another Wisconsin case Prof. Gluck could mention is Buse v. Smith (1976), decided nearly thirty years before Kalal.
In that case, the court decided on a method for interpreting the text of the Wisconsin Constitution. While Kalal prioritizes text over secondary sources, Buse puts text on the same plane as legislative and ratification history and contemporaneous legislative enactments. In the case of original constitutional text, the court looks at debates in the constitutional conventions of 1846 and 1848. In the case of amendments, the court considers legislative history from both sessions of the legislature through which an amendment passed. It also considers newspaper stories, editorials, press releases, polling data, and other sources that are supposed to show what Wisconsin voters understood the amendment to mean when they ratified it at the polls.
In a paper just posted on SSRN, I argue that the Buse methodology is thoroughly flawed, and urge the court to use the Kalal method for both statutory and constitutional cases. Justice Michael Gableman, in his excellent opinion in Coulee Catholic Schools v. LIRC, first tied the holding of Kalal in with constitutional interpretation. For all the reasons laid out in the paper, I believe the court should follow up this initial intimation and straightforwardly state in its next constitutional case that Kalal has replaced Buse as the governing standard for interpretation of the Wisconsin Constitution.