Wisconsin Supreme Court Rules Sidewalks are Not “Pedestrian Ways” to Allow for Eminent Domain Seizures
By: Jonathan Turley | June 20, 2024
In Charles Dickens’ Oliver Twist, a court informs the irascible character of Mr. Bumble that it assumes a level of control of his wife’s conduct. Mr. Bumble responds that “if the law supposes that, the law is a ass – a idiot.” The scene came to mind with a decision yesterday when the Wisconsin Supreme Court voted 4-3 in Sojenhomer v. Village of Egg Harbor that a sidewalk is not a “pedestrian way.” Lawyers in Wisconsin are already sending around Bumble-like harrumphs to the decision, which is a testament to the ability of judges to ignore plain meaning to achieve desired results.
Where the Mad Hatter in Alice in Wonderland asked, “why is a raven like a writing-desk?” the Wisconsin Supreme Court asked why a sidewalk is not like a pedestrian way. The result is equally maddening.
At issue was the effort of the state to create more sidewalks. Faced with resistance from homeowners, the state was using eminent domain to simply condemn the land and claim it for sidewalks. However, Wisconsin has strong protections for homeowners, including statutes expressly stating that the power of eminent domain must be “strictly construed” against the government.
Moreover, there is a statute that expressly bars the use of eminent domain to take property for “pedestrian way[s].” It defines a “pedestrian way” as “a walk designated for the use of pedestrian travel.”
To every Bumble and non-Bumble alike, that would seem to describe a sidewalk, which is defined by Merriam-Webster as “a usually paved walk for pedestrians at the side of a street.”
Not so says Justice Rebecca Frank Dallet:
Reading the text of this section as a whole, we find several indications that the definition of pedestrian way does not include sidewalks. For starters, both § 346.02(8)(a) and (b) use the terms “sidewalk” and “pedestrian way” in ways that signify that each term has a separate, non-overlapping meaning. … Section 346.02(8)(b) states that pedestrian ways shall be treated ‘as if’ they were sidewalks for utility installation and assessment purposes. The phrase “as if” signals that one category (pedestrian ways) should receive the same treatment as a different category (sidewalks). That is the same way the legislature used “as if” in, for example, Wis. Stat. § 53.03, which states that Wisconsin courts “may treat a foreign country as if it were a state” in guardianship proceedings. Just as foreign countries are not states but should be treated as if they were for guardianship purposes, pedestrian ways are not sidewalks, but should be treated as if they were for utility-installation and assessment purposes.
The analogy is a poor one, in my view. The treatment of a foreign state like a domestic state captures the fact that both are governing units with similar inherent functions and powers. That is a far cry from saying a “pedestrian way” is NOT a “sidewalk.”
Justice Dallet then adds:
The language of § 346.02(8)(a) also suggests that sidewalks are not pedestrian ways. That paragraph makes the rules of the road pertaining to sidewalks also applicable to pedestrian ways. But if sidewalks are pedestrian ways, then the rules of the road applicable to sidewalks would already apply to pedestrian ways. The point here, to be clear, is not that reading the term “pedestrian way” to include sidewalks would result in surplusage….
However, that may indicate that “pedestrian ways” are a broader category than just sidewalks. It does not suggest that sidewalks are not pedestrian ways.
That seems to be the point of the dissent by Chief Justice Annette Kingsland Ziegler:
The plain language of the statute demonstrates that the term “pedestrian way” is broadly defined, and includes sidewalks. A sidewalk——that portion of the highway created for the travel of persons on foot——is clearly a subset of pedestrian ways——walks set apart or assigned for the use of pedestrian travel. It is a straightforward, common-sense interpretation of the statutory language that a “walk designated for the use of pedestrian travel” necessarily includes that part of the highway “constructed for the use of pedestrians…”
[I]n other words, a closer look at the plain meaning of the statutes reveals that all sidewalks are pedestrian ways, but that not all pedestrian ways are sidewalks….
What is particularly galling about the decision of the majority is that they avoid the required strict construction of the law against the government as inapplicable by simply declaring that there is no ambiguity in the language of the statutes, a preposterous claim that requires a level of willful judicial blindness.
The creative effort to ignore the obvious is reminiscent of the fictional Canadian case where a horse was declared a bird. Though sometimes cited as a real case, it appears to be an opinion written to show how legal interpretations can take on absurd dimensions to result in desired ends.
In Regina v. Ojibway (8 Criminal Law Quarterly 137 (1965-66)), a Canadian indigenous tribe member puts down a suffering horse but is then charged under a criminal provision for shooting a bird under the Small Birds Act (R.S.O.). Blue, J., delivers the opinion for the court, granting the appeal, saying:
For the purpose of the Small Birds Act, all two-legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals with feathers as well.
Counsel submits that having regard to the purpose of the statute only small animals “naturally covered” with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase “naturally covered” would have been expressly inserted just as “Long” was inserted in the Longshoreman’s Act.
Therefore, a horse with feathers on its back must be deemed for the purpose of this Act to be a bird, a fortiori, a pony with feathers on its back is a small bird.
In Wisconsin, it appears that the Supreme Court would have simply said that the pony, since a pony can be treated “as if” it is a horse, it is not a horse.
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