Monday, October 25, 2010

A Kalal for the Wisconsin Constitution

By Daniel Suhr, available for download at the SSRN Working Papers Series. Per the Abstract
When the Wisconsin Supreme Court interprets state statutes, it follows a methodology first set in State ex rel. Kalal v. Dane County Circuit Court [2004 WI 58] (2004) [opinion]. This method focuses primarily on the text of the statute, and circumscribes reference to legislative history and other secondary sources.

Yet when the Wisconsin Supreme Court interprets the state constitution, it follows a different methodology, first set in Buse v. Smith (1976). This method looks at text, legislative and popular history, and contemporaneous legislative enactments. For amendments to the state constitution, legislative and popular history covers two sessions of the Legislature and the statewide discussion of the amendment in advance of its ratification by the people at the polls.

In the first half of this paper, I outline the Court's interpretation of the state constitution through history, both from 1848 to 1976 and 1976 to present. In the second half, I critique the Court's current method, and decide that it is an unreliable guide for judicial interpretation of the state constitution. Additionally, I suggest that Kalal advanced certain rule of law values which make its method preferable. Thus, I conclude by recommending that the Court adopt the methodology of Kalal for interpreting both statutes and the state constitution.