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.”
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 home owners, 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.
On further reading, the Wisconsin Supreme Court notes in ¶19 that it is NOT relying on “the surplusage canon,” but then in that same paragraph makes the unfounded conclusion that “the text itself indicates that these terms have separate, non-overlapping
meanings.”
§340.01(58) states, “‘Sidewalk’ means that portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, constructed for use of pedestrians.”
So, clearly, a sidewalk is a pedestrian way on a highway.
Wisconsin Supreme Court says that statutory construction that results in surplusage must be avoided. But the very statutes upon which the Court relies INCLUDE surplusage.
Take ¶16 of the opinion:
¶16 We begin with the full text of Wis. Stat. § 346.02(8),
which provides:
(8) Applicability to pedestrian ways
(a) All of the applicable provisions of this
chapter pertaining to highways, streets,
alleys, roadways and sidewalks also apply to
pedestrian ways. A pedestrian way means a
walk designated for the use of pedestrian
travel.
(b) Public utilities may be installed either
above or below a pedestrian way, and
assessments may be made therefor as if such
pedestrian way were a highway, street, alley,
roadway or sidewalk.
Well, Wis. Stat. § 340.01(54) defines “roadway” as part of a portion of a highway, § 340.01(58) defines “sidewalk” as a portion of a highway DISTINCT from a roadway. Yet, § 346.02(8) names “highways” and “roadways” and “sidewalks.”
Black-robed tyrants sitting on a throne, making law through the manipulation of semantics, are completely destroying our nation. We vote. They deny us the decision. We legislate. They deny us the intended outcome. We seek Justice. They laugh. Our legal system has become a joke, an embarrassment and a threat to our freedom. Our Founders took great care to insure that we would never have lords and masters ruling over us. Well, folks, guess what. We have them now. The only functionaries who can write law, neutralize legislation, modify the Constitution and negate the will of the American People. We have identified the enemy. Let’s do something about it!
In other news, Alvin Bragg charges Donald Trump with jaywalking on a sidewalk because a sidewalk is not a pedestrian way. Furthermore Bragg upgrades the jaywalking charge to a felony because Trump used a sidewalk to get to his meeting with his campaign staff and therefore it is election interference.
This just in, Bragg states that while jaywalking on the pedestrian way Trump took 34 steps to enter the election headquarters and therefore he will indict for him for 34 felonies.
Perhaps one of the greatest crisis in America is: Politicians in black robes – political judges!
Judges not providing their top duty of constitutional judicial review (where the non-political Judicial Branch overturns unconstitutional laws & practices by the other 2 political branches).
In the 21st Century, we have judges appeasing (not checking) politicians, attending political events and even publicly expressing political positions.
Politicians appease “popularity” with the voters and largely ignore unpopular issues like constitutional rights. Judges are duty bound to follow the U.S. Constitution and the Constitution’s circumscribing local, state and federal law – not to be popular with voters.
One possible solution that is constitutional: allow 100% of all judges to file (non-binding) amicus briefs, especially for Supreme Court level cases and appeals cases. Maybe a handful of judges can be corrupted, it’s way harder to corrupt the legal advice of hundreds of judges. Let non-political judges police political-judges!
The use of Eminent domain is fine as long as it fulfills a bigger purpose (Public purpose),
and is not a Sidewalk-to-Nowhere.
What I have objection to is that most cases a Land Use revaluation (think Lot Size) is not performed by the Tax Assessor (a property tax reassessment) for the loss of land contributed by the Eminent Domain, Indeed I would also call out certain Easements for property tax reassessment as well.
The primary objection is that You’re paying for not being to use the land, and in many cases you are to maintain it as well.
Is there a chance somewhere there’s a
Merchan School of Law in America?
Some are hoping for a chain of schools across America to open in the next few months that issues Guillotine Executioner Certificates™. That and a handy dandy manual on how to construct a guillotine. Election is right around the corner so….you know how clever those Russians are 😉
Remember Mao Culture Revolution where the people are FORCED to parrot lies they know are lies!
Time to END all Federal Aid to cities, states, colleges and non-profits.
Defund Democrats!!! Let’s see them function without ENDLESS Federal Aid to paper off their FAILURE!
Jon repeat after me “democrats are FASCISTS”
it is time to jail these criminal democrats by the 1000’s….judges, congress, fbi, doj, etc
Insane / hilarious. For completeness, I’d like to get Bragg’s take on, under what circumstances would a jaywalking violation on a non pedestrian sidewalk constitute a felony.
When Donald Trump goes it, it’s a felony.
Yea. I know.
“. . . a sidewalk is not a ‘pedestrian way.’”
So what is it? A banana split? A fruit salad?
Typical Leftist tactic to usurp rights and seize property: Manipulate language. Then assume that your words are reality.
So is the sidewalk a woman? What is a woman?
“Logic is the life of the law.” Edward Coke.
“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.”
The analogy is correct. A country can be considered a foreign state, but it’s not a state per se. Because a country can have multiple states. A state cannot be considered a country as in Wisconsin is not a country. A sidewalk and a pedestrian way are two different things. You can have a pedestrian way right on the road, a lane designated by a painted line making it a pedestrian way would not be a sidewalk because a sidewalk is commonly expected to be off the road usually delineated by a curb or easement. A pedestrian way can be an elevated walkway, a hallway, a tunnel, trail, etc.
It’s annoying that people still argue particular meanings of phrases or words. But that’s what determines how we interpret things. We would think most meanings are already settled, but that’s not true. We only assume until someone challenges it. When it comes to the law. Specific meanings matter. A pedestrian way CAN mean a sidewalk, but it can also mean a marked lane in the middle of the road. A pedestrian way in the middle of the road is not a sidewalk. There’s a reason why they are not picky about specific meanings. Nobody is going to call a pedestrian way in the middle of the road a sidewalk.
“A country can be . . .”
We got it, already.
Given a sufficient number of sentences, you can morph “death camps” into “summer camps,” and vice versa.
“A pedestrian way CAN mean a sidewalk, but it can also mean a marked lane in the middle of the road.”
Please cite your reference for that definition.
Just makin’ shit up again.
Pedestrian way means a public right-of-way or easement between or through lots for pedestrian use.
A painted line parallel to the roadway is a pedestrian lane. A painted line perpendicular to the road is a crosswalk.
Why do i feel like i am teaching a third grader.
It’s also a pedestrian way. “Way” can mean a lane. Carriage way is a lane also. You can nit pick all you want. But in the Wisconsin case, they are specifically saying a pedestrian way is a much broader meaning than sidewalk which is defined by clear parameters.
“A painted line perpendicular to the road is a crosswalk.”
No, a painted line is a painted line. Not a cross walk. A painted line (singular) is a threshold before a cross walk. TWO painted lines 4 feet apart parallel to each other with broader lines in between perpendicular to the two lines IS a cross walk. The law requires specificity in order to avoid confusion on definition. A painted line can also be a demarcation of a road’s edge.
LMAO
A pedestrian way CAN mean a sidewalk, but it can also mean a marked lane in the middle of the road.—George the Gimp
No, a painted line is a painted line.—George, digging the hole deeper
No, a painted line is a painted line. Not a cross walk. A painted line (singular) is a threshold before a cross walk. TWO painted lines 4 feet apart parallel to each other with broader lines in between perpendicular to the two lines IS a cross walk.
You want to play word games, retard? I was playing them when you were an itch in your daddy’s pants.
TWO painted lines 4 feet apart parallel to each other with broader lines in between perpendicular to the two lines IS NOT a cross walk.
What you described means nothing if it’s painted on a sidewalk or a tennis court.
TWO painted lines 4 feet apart parallel to each other with broader lines in between perpendicular to the two lines, ON A ROADWAY, IS a cross walk.
Specificity matters. (said in the voice of Erkel)
Same old Svelaz. Thinks he can make up for one ignorant statement by glomming onto some irrelevant horse shit.
LMAO 45 minutes and THAT was the best Svelaz could come up with.
Ooooh I’ll distract from my ignorant statement by jumping on that “painted line” thing—George the Gimp
they are specifically saying a pedestrian way is a much broader meaning than sidewalk
LMAO
He doesn’t even understand the ruling.
You can nit pick all you want. —The Gimp
The law requires specificity—-The Gimp, in the same post
IRONY….such a terrible thing to waste.
“It’s also a pedestrian way.”
No, it’s not.
Again, for the idiot non savant in the room…
Pedestrian way means a public right-of-way or easement between or through lots for pedestrian use.
public right-of-way or easement
THAT is the key phrase, dum dum. All of your other definitions of “way” are NOT what the “way” in “pedestrian way” means.
It’s specifically about easements and right-of-ways. Not a crosswalk, where a pedestrian has the “right of way”, LMAO
What an idiot.
1. the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another.
NOT
2. the legal right of a pedestrian, vehicle, or ship to proceed with precedence over others in a particular situation or place.
Read more, type less
His reference is the WSC LOL
Now we wait as Svelaz scours the web looking for anything that will substantiate his ignorant statement.
Its groundhog day every day in “Turleyville”.
You know why you’re called an idiot every day here??
A pedestrian way is for pedestrians only.
LOL
This is why I caution you every day to read more and type less, New George the spastic idiot non savant.
It like you enjoy being spit on in some sort of masochistic ritual each day.
I may just start calling you The Gimp.
A sidewalk is an improved pedestrian way, specifically at the side of a road. Concrete, brick, pavers, asphalt, etc.
EVERY sidewalk is a pedestrian way.
Period.
The most logical and common sense plain meaning, as stated by the dissent, is that a “sidewalk” is a subset of the more general category of “pedestrian way”.
That is the only meaning.
“A sidewalk and a pedestrian way are two different things. “
George, the law is being discussed, not the Merriam-Webster definitions.
An intelligent person and an unintelligent person are two different things. You are the latter.
There is no Merriam definition of “pedestrian way”, so spastic idiot Svelaz uses the separate definitions of “pedestrian” and “way”. He needs things to be simple like that.
It doesn’t matter to him that the whole context is property rights and imminent domain, and that those words have specific meaning in that context.
He thinks a crosswalk is a pedestrian way because its used by pedestrians and its a way.
And pedestrians have the right of way there, too, he says. LMAO
He even doubled down on stupid after I gave him the meaning of the TERM, pedestrian way.
It looks like George the moron needs to take one lousy day off from trying to play devils advocate to every last thing Turley says.
He didn’t last 30 seconds in the ring against Tyson-Waters today.
Maybe he is a little punch drunk
Maybe Dickens was not right. Maybe the law is not an ass but it appears the Judges are the Asses and beyond.
Row vs Wade, if I remember right, was a decision based on the “right to privacy” which was not in the constitution and had been used only once previous to Roe v Wade in a losing dissent. I believe also that RBG and other progressive judges believed that Roe V Wade was “bad” legally, as far as the judgement was concerned, but since the desired result was “good”, It did not matter.
Well it does matter. When you use the court to say that right is wrong, up is down, white is black, day is nite, you degrade and cheapen the laws of the land. How can we proclaim to the world that “we are a nation of laws” when even the judges don’t believe or act like it.
I may not like a decision by a court but if the judgement is based on sound and appropriate interpretation of the law then I will accept it, and then work like hell to change the law. Which is what I believe was the whole point of founding a Federal Republic.
Much of the resistance to England was no “taxation without representation” but there also was a significant amount of the Revolution that was built on the King and Parliament flouting the Law to their ends alone. Treason especially, as well as charged smugglers being moved out of local courts and sent to Crown Justice in England. As I remember the Constitution focuses very much on trials being conducted in the area of where the alleged crime took place, likely as a result of that abuse.
Every time you get a decision like this, one or more citizens start to think more about other ways to change the government than the means we have used for 200+ years.
If the law does not matter, then what does?
As a species, we have become ridiculous.
And look at who wrote the opinion on the Small Birds Act: “Small Birds Act (R.S.O.). Blue, J., delivers the opinion for the court, granting the appeal, saying:”
no…other countries still function
Other quotations from literature might apply. Shakespeare has several worthy of consideration. In Henry VI we find “The first thing we do, let’s kill all the lawyers” and later “All scholars, lawyers, courtiers, gentlemen, they call false caterpillars and intend their death.”
I was born and raised in Wisconsin. This, Professor, is not news in that state. Your sorry attempt to ridicule the “Wisconsin Way” will have no effect on the Judges or the other Government hacks who run the place, and always have. The end always justifies the means in Wisconsin. Chicago has nothing on Milwaukee with respect to ballot box stuffing. We produced Bob LaFollette, Joe McCarthy and Bill Proxmire. Perhaps it is because Wisconsin leads the nation in per capita alcohol consumption. Perhaps it is because the Green Bay Packers are more important than the state government.
Whatever it is, we are used to it and, in a perverse way, proud of it.
I am a 40-year law professor and a part-time lobbyist in a Blue state. Properly drafting a statute is like cross-examining an FBI agent. You have to block off all the escape hatches before you ask the quedtion or they will slip through.
Liberal judges are the same. After decades, I know you cannot draft a stature they cannot and will not twist to support the Progressive result (“result” not fair reading). Liberal judges do this 20 times as often as conservatine judges (who feel constrained not to remake the policies set by the Legislators).
The last Wisconsin Supreme Court Juducial election removed the last conservative Justice. Leading to this “I got all the votes” decision.
No wonder 21st Century laugh at the concept of a the “Nation of Laws, not Judges”.
it is TIME TO JAIL….these Criminal Judges!
Classic case of the need for content exceeding supply.
Gotta keep the MAGA morons riled up somehow.
The writers of this blog at Fox are scraping the bottom of the barrel again.
You will never convince that Turley writes this stuff.
This was posted before 6am.
No way that Turley posted it.
And yet here you are, wasting your valuable time reading it.
There’s no way your h.r department is up at Friday at 2 a.m paying everyone in the company. Oh yeah, just like articles, they can be arranged to automatically post at a time of your choosing.
HaHaHaHaHa. How do you figure out how to put your pants on in the morning?
Modern technology.
You might have heard of it.
What do you care who writes it.
Simple remedy
GFY
I’m almost beyond words, at the blatant “stupidity” of so many in high positions, as to believe, Idiocracy has truly become a documentary! SMDH or, most of these people are just plain evil. Whichever is easiest to believe will do.
An apple is not fruit, therefore, because the law says you cannot take someone’s fruit, you can take their apples?
Is that what they said?
I believe they got into trouble by using the wrong terminology; the correct terminology is “SWALE.”