Bizarre, Courts

Wisconsin Supreme Court Rules Sidewalks are Not “Pedestrian Ways” to Allow for Eminent Domain Seizures
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 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.

 

274 thoughts on “Wisconsin Supreme Court Rules Sidewalks are Not “Pedestrian Ways” to Allow for Eminent Domain Seizures”

  1. A sidewalk is not a sidewalk and Obama didn’t have to take little Joe’s hand to help him off the stage.

    1. S. Meyer: I just looked at your attached link. Excellent debate, thanks for posting. (I also like DM’s rebuttal with his “what if someone said, ‘let’s eliminate Pakistan as a country….” example.)

      1. Unfortunately, Lin, when I last looked the free video was gone. If you have a link that works could you please post it. The link I sent to a friend didn’t work.

  3. The good news is that law professors will not need to rely on apocryphal cases such as Regina v. Ojibway (8 Criminal Law Quarterly 137 (1965-66)) but can cite this case. In addition there is the 2023 case where a Washington State Supreme court ruled (Quinn v. State, No. 100769-8) that Capital Gains is not income, despite the longstanding IRS position and that of the rest of the states, and instead ruled it an Excise Tax. This makes no sense because the gain (or loss) is accounted at the sale and excise tax would be imposed at the purchase. Furthermore Washington State is taxing the change in value of a property rather than the value itself which is the basis of an excise tax. Never underestimate the capability of the human mind to rationalize anything.

    1. Anonymous 12:05 PM-Well it is Washington state and they kind of have a perverse sense of the law. I think that is why people in eastern Washington and Oregon want to join the state of Idaho.

    1. See below as Dennis the Draft Dodger doesn’t see the irony in his ignorant post. He just explained how consistent Jonathan has been in not approving of jurists who rewrite the law rather than following it.

  5. Jonathan: So you think the Wisconsin SC got it wrong–finding a sidewalk is not a “pedestrian way”. You call the decision “maddening” and the court has written a decision “to show how legal interpretations can take on absurd dimensions to result in desired ends”.

    Funny, you didn’t write a similar column last week in the much more important opinion by Clarence Thomas finding “bump stocks” are not prohibited under 1986 Congressional legislation. Thomas’s decision was equally “maddening” because he ignored the plain language of the statute that included devices that turn a semi-automatic into a virtual “machine gun”. That’s what bump stocks do. Thomas equally had “take on absurd dimensions to result in desired ends”.

    Thomas said Congress must pass new legislation to specifically ban bump stocks. And the Senate just tried to do that. Yesterday, the Dems, specifically, Chuck Schumer and Martin Heinrich, asked for “unanimous consent” to ban bump stocks. Heinrich said: There is no legitimate use for a bump stock. Not for self-defense. Not in a law enforcement context…But what they are tailor-made for is mass shootings”. And what was the response by Senate Republicans? GOP Senator Pete Ricketts, backed Mitch McConnell and other GOP Senators blocked the proposal. A complete turnaround when Senate Republicans backed the Trump bump stock ban after the 2017 Las Vegas massacre.

    Times have changed. Now DJT and the GOP are running on a platform of support for gun rights–even the bump stock. That means any crazy now can equip himself with an AR or AK style rife, equipped with a bump stock, and kill a lot more innocent Americans. Your failure to address Thomas’s more consequential decision, that inevitably will cost more American lives, speaks volumes about what court decisions you find “maddening”!

    1. Dennis lies again.

      NOONE is campaigning on bump stocks, except YOUR dumb ass.

    2. You must have missed it Dennis. Read more, type less.

      “Turley has made clear his thoughts on unelected bureaucrats making law in contravention of the Constitution, and the Supreme Court’s role in that.

      Biden has had 3-1/2 years to codify that prohibition (that everyone knew was not going to pass muster). The “master statesman” has been too busy circumventing other SCOTUS rulings in order to give away billions of dollars.”

    3. Dennis is a fvcking LIAR

      Sen. Martin Heinrich, D-N.M., requested unanimous consent to pass a bill he introduced that would ban the import, sale, manufacture, possession and transfer of bump stocks and other devices.

      Can you not tell the truth just ONCE in your life, Dennis?

      And you are too stupid or brainwashed to even recognize what happened here. That cock sucking Democrat introduced a bill with other accessories in it that HE KNEW would be blocked.

      Just so brain dead sycophants like you could parrot the talking point.

      HE chose politics over saving lives, not the Republicans.

      1. What’s really hilarious is that Dennis thinks he is talking to his ignorant friends and family members, who don’t have a clue what’s going on.

        It usually takes about 20 seconds to squash his stupidity.

      2. Dennis and his ilk are going to keep fvcking around until they get the ENTIRE Gun Control Act of 1968 struck down. How about a few million auto sears out there, Denny. Will that make you happy?

        1. Its very much like when his dumb ass was cheering on Obama. Never mind that THAT is EXACTLY what created Trump.

        2. Do you really think Dennis knows what an auto sear is??

          He’s Mr. “AR-15’s ruin the meat”. Of course he is qualified to determine whether a device fits the definition of machine gun.

        3. DDC said: “Dennis and his ilk are going to keep fvcking around until they get the ENTIRE Gun Control Act of 1968 struck down.”
          The ENTIRE Gun Control Act of 1968 is a blatant, direct infringement of the right to keep and bear arms as guaranteed by the 2nd Amendment. It should be struck down, but that ought to be the result of a judiciary that takes the Constitution seriously and enforces it, not the result of jurists reacting to idiot leftists making imprudent attempts to increase infringements that already violate that Constitution and our rights.

          1. Whatever the impetus, they will have no one to blame but themselves, when PCP addicts are allowed to have guns.

            1. Toss around red herrings much? Actually, if your slimy and cowardly inference is correct, that might be a promising way to relieve society of the burden of PCP addicts.

    4. “Bump stocks” are recoil suppression devices and fall under medical devices according to Section 201(h) of the Federal Food, Drug, and Cosmetic Act (FD&C Act).
      The term “device” (except when used in paragraph (n) of this section and in sections 301(i), 403(f), 502(c), and 602(c)) means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is…
      …(C) intended to affect the structure or any function of the body of man or other animals, and which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes.

  6. OT

    The MSM is hard at it covering for KJP and the Admin’s lies regarding “cheap fakes”.

    Yesterday, CBS had to take down the parachute video that was labeled “digitally altered” when it was not.

    KJP described the videos as “manipulated”…another lie.

    “Fact Checkers” at CNN said Biden “paused” on stage, and didn’t freeze. Ok, if pause means he stood absolutely motionless for seven seconds, with zero change in facial expression.

    Couple of things to add some context.

    Watch the Italian PM in that video. She IMMEDIATELY notices Biden turn away and walk off. She immediately begins to meander nonchalantly across the group directly to Biden. She was forewarned of what might happen, and what to do if it did.

    In the Kimmel video, why does Obama touch Biden? What the fvck is that? That is the POTUS. You don’t touch him and signal it’s time to go. Are you fvcking kidding me??? The POTUS leaves when HE decides to leave.

    I’ll tell you what it was. Obama was also made cognizant of what could happen and what to do if it did.

    June 10th.
    If you are the POTUS, and people have made an issue of your cognitive decline, are you going to be seen on camera, standing with your arms hanging in front of you, motionless and gawking with the same shit eating grin on your face, for 30 seconds??? Only if you are IMPAIRED.

    So they Animal Farm us, with the naw, naw naw, that video is not real.

    1. Waters,
      Then the Biden campaign posted a very edited video and claimed it was Trump who needed lead off a stage.
      It was quickly debunked.
      That is how desperate they are. Biden’s cognitive decline is becoming more and more obvious.

      1. UpstateFarmer 12:08 pm I guess it was not a freeze because the MSM could not yet see the ice sickles forming on his face and non moving extremities. I’m sure his skin is cold as ice when you are that age and there is no evidence of even slightly robust circulation.

      2. In fact it was only a picture. Then the video revealed that Trump clasped Don Jr’s hand for 1/2 second, as loving recognition of a father to a son.

    2. “Watch the Italian PM in that video.”

      Waters, it wasn’t the Italian PM. It was Trump in disguise. 🙂

    3. You want to talk about “cognitive decline”? How about Trump: 1. claiming he ran against Barak Obama in 2016; 2. Claimed, repeatedly that he offiered Nikki Haley 10,000 “people’ on January 6 and she declined: 3. Mixed up Sioux Falls and Sioux City: 4. Called Tim Cook “Time Apple”; 5. said wind turbines cause cancer and decrease the value of nearby homes by 75%; 5. Said Vicktor Orban was the President of Turkey, when he is the President of Hungary; 6. Went on a rant about a battery powered boat sinking and putting passengers at risk of either electrocution or getting eaten by a shark; 7. During a rally referred to the “late, great Hannibal Lector”–a fictional character from “Silence of the Lambs” who was a psychopath and not dead; 8. Said America was on the verge of WW 2; 9. When bragging about “acing” a cognitive test administered by his doctor, he called the doctor “Ronny Johnson”, not “Jackson”. Here are some more:

      “Shortly after we win the presidency, I will have the horrible war between Russia and Ukraine settled. I know them both very well, and we will restore peace through strength. Get that war settled. It’s a bad war. And Putin has so little respect for Obama that he’s starting to throw around the nuclear word. You heard that. Nuclear. He’s starting to talk nuclear weapons today,” Trump said in Virginia, drawing stunned silence from his typically uproarious crowd.

      It wasn’t the first time Trump has confused the two on the campaign trail, transparently attempting to cover up the blatant memory lapses by claiming that “Obama is running the show.” But if that wasn’t enough, Trump went on to try to take credit for Veterans Choice, which was passed in 2014 under Obama.

      Trump also mistook Argentina for a person, calling MAGA the “greatest movement … maybe in the history of any country, even Argentina.” “You know, Argentina, great guy. He’s a big Trump guy. He loves Trump. I love him because he loves Trump. Anybody that loves me. I like them,” Trump said.

      As Trump became increasingly flustered and overwhelmed, he couldn’t figure out how to say “Venezuela” and repeatedly short-circuited.

      And while in North Carolina, Trump aligned himself with the January 6 rioters, hailing them as “hostages,” while pegging himself as “a proud political dissident” and “a public enemy of a rogue regime.”

      And, despite awaiting trial in relation to his efforts to overturn the 2020 presidential election results, Trump condemned President Joe Biden as “the real threat to democracy.”

      “Biden’s conduct on our border is by any definition a conspiracy to overthrow the United States of America,” he said in Greensboro. “Biden and his accomplices want to collapse the American system, nullify the will of the actual American voters, and establish a new base of power that gives them control for generations.”

      Other glitches included mistaking a poll for a legislative bill, calling the country the “United Stage” and a “nation that’s no longer respectered,” and just generally making an uncanny assortment of noises for a candidate for the most powerful office in the world: “Diiiiing, boom. This is me, [unintelligible] bing!”

      Ahead of the weekend, Trump’s campaign signaled that it had no intention of reeling in the GOP front-runner’s alarming rhetoric.

      1. Yada yada yada big mouth

        You’re the one who came in here with that “cheap fake” shit the other day. We’ve all seen the 3 videos.

        And now the one where he calls Mayorkis

        Obadee obadah!

        What is that look on his face at that moment Gigi?

      2. Link to those videos, liar.

        We’re not interested in what you read in Vox this week.

      3. They already attempted exactly what trump warned

        Abolish the filibuster
        Add 2 democrat states
        Add 4 democrat senators
        Effectively abolish the electoral college
        Pack the supreme court

        Only Joe Manchin stopped them. Thats how close we were

  7. If I am correct, the Supreme Court of Wisconsin is quite progressive and decides things in a progressive manner where the state and progressivism take precedence over the people.

    Those who complain about Wisconsin’s Supreme Court’s complete disregard for the meaning of the law and words should relate those thoughts when voting in 2024. Vote against Biden and progressivism. Vote to maintain your rights. Vote for Trump and Republicans, even if one might find it distasteful. The liberties and property rights of American citizens are lost with Democrat control.

    1. S. Meyer,
      Well said.
      Vote for your rights, your liberties and normalcy.
      If you dont, we will see more of this idiocracy like in WI.

  8. But what if the pedestrian way “identifies” as a sidewalk? I can’t believe the Middle School Judge missed that one…

    1. Once again Turley makes a valid point about a rediculous ruling from a “liberal” court. How about bump stocks Jon?

      2. Turley has made clear his thoughts on unelected bureaucrats making law in contravention of the Constitution, and the Supreme Court’s role in that.

        Biden has had 3-1/2 years to codify that prohibition (that everyone knew was not going to pass muster). The “master statesman” has been too busy circumventing other SCOTUS rulings in order to give away billions of dollars.

  9. O.T.:
    This BlackRock left-wing conspiracy theory has more to it than meets the eye
    Congressional Republicans alleged this week that a vast left-wing conspiracy in the machinery of corporate governance is pushing a progressive agenda.

    A House Judiciary Committee report accused blue-state pension funds, climate nonprofits, global alliances, activist investors, and giant money managers including BlackRock and Vanguard, of forming an illegal cartel to force companies to cut their carbon emissions, set diversity quotas, and curb their political contributions.
    By: Liz Hoffman ~ Jun 13, 2024
    https://www.semafor.com/article/06/13/2024/this-blackrock-left-wing-conspiracy-theory-has-more-to-it-than-meets-the-eye

  10. JT brings up another issue for litigation. “Horse Poop”.

    And of all the places during these high temperature days…The beach! Add Horse manure to shark attacks & jelly fish stings.

      1. Anonymous said: “Are there any Americans in Half Moon Bay?”

        Only a few tourist surfers. Otherwise it’s only Californians…

  11. So, now we have come to the point where those who hold power can determine our laws and our guilt? Didn’t we fight several major wars to eliminate that sort of tyranny?

  12. Silly people! Obviously, the word “pedestrian” here is being used as an ADJECTIVE, not a noun! Note in the term, “PEDESTRIAN ways” – the word “pedestrian” comes in front of the word, “ways.” To modify the word, such as a “red” house or a “demented” President.

    Now, what is the ADJECTIVE meaning of pedestrian:

    lacking inspiration or excitement; dull.
    “disenchantment with their present, pedestrian lives”
    Similar:
    dull
    plodding
    boring
    tedious
    monotonous
    uneventful

    What the law obviously means is that eminent domain can not be exercised for something dull and lacking excitement. It has nothing to do with side walks, which can be exciting places full of hop scotch, and skateboarding and dog walking.

  14. Oh what the hell. A sidewalk is not a sidewalk and a little boy is not a little boy and a little girl is not a little girl. Welcome to a nation being run by the product of elite law schools. It is the natural manipulation of men whose profession is built on the use of words to mean anything they want them to mean. Nothing is worse than a malevolent man with a dictionary in hand. See Adam Schiff as only one of many examples. A second example would be a malevolent man who goes by the name of Joe Biden who says that he taught constitutional law for nine years when he didn’t. And to top it all off they think your to stupid and deplorable to catch on. Are you?

        2. As usual attack the grammar and not the point of the argument. Stinkin thinkin. (Improperly spelled but to the point)

          1. As usual fail to see the humor, like a post menopausal kunt . The point was spot on. Why would i attack it?

    3. Thinkitthrough says, “Nothing is worse than a malevolent man with a dictionary in hand.”

      The deciding vote was actually cast by Wisconsin Supreme Court Justice Rebecca Frank Dallet in order to protect homeowners from eminent domain and assorted riff-raff walking in front of their suburban boxes. Property owners hate public access.

  15. When everything depends on context and words have no objective meaning, anything is possible. At some point, one hopes the stupidity of deconstructionists becomes evident even to progressives.

  16. What do you call a lawyer with an IQ of 100?
    Your honor.
    What do you call a lawyer with an IQ of 75?
    Senator.

  17. Sounds an awful lot like Alito’s contrived use of 12th century ecclesiastical law to overturn Roe vs Wade.

    3. Questioning our justice system is dangerous and irresponsible

      —–Joe Biden

  18. DJT stock is on sale today !!!!
    Get in quick while stocks last !!!

      1. More money to be had in Vegas

        Place your $10k bet on Biden now. The odds are fantastic.

        Or don’t because you’re chickenshit

        1. The odds were in my favor, I had ’em 5 to 1
          When that nag to win came around the track
          Sure enough we had won!

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