The Volokh Conspiracy
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Wisconsin Supreme Court Rules Sidewalks are not "Pedestrian Ways"—thus Allowing Local Governments to Use Eminent Domain to Take Property to Build Them
The close 4-3 decision might well become a staple of textbooks.
Courts sometimes adopt highly counterintuitive interpretations of words. In 2022, a California court notoriously ruled that bees qualify as fish. Today, in Sojenhomer v. Village of Egg Harbor, the Supreme Court of Wisconsin ruled that a sidewalk is not a "pedestrian way." They thereby enabled local governments to use eminent domain to condemn property to build sidewalks, despite a state law forbidding the use of eminent domain to take property for "pedestrian way[s]." The close 4-3 decision might become a staple of law school textbooks.
It may seem obvious that a sidewalk is, in fact, a pedestrian way. Indeed, as the court notes, the relevant statute defines a "pedestrian way" as "a walk designated for the use of pedestrian travel." That seems to pretty obviously include sidewalks! You don't have to be a property scholar like me to see that.
But the majority opinion by Justice Rebecca Frank Dallet emphasizes that "[t]he ordinary meaning of a statute is dictated by more than the literal meaning of a single phrase, read in isolation." She argues that the statute uses "pedestrian way" and "sidewalk" in ways that indicate the two are supposed to be separate and distinct concepts:
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)….
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….
These arguments are clever. But I don't think they overcome the definition of "pedestrian ways" spelled out in the text of the statute: "a walk designated for the use of pedestrian travel." When the legislature specifically defines a term, that definition trumps any indirect contextual inferences that judges can extract from other passages in the law.
Sometimes, a term might have a specialized technical meaning in a statute that is different from its ordinary language meaning. But that isn't the case here. The legislature specifically defined the term in a way that precludes interpreting it as a convoluted "term of art."
In addition, the seeming anomalies identified by the majority are effectively dealt with in 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….
I acknowledge that Wis. Stat. § 346.02(8) employs both the term "sidewalk" and the term "pedestrian way" in two separate sentences, in close proximity. And under some
circumstances, these things might suggest that the terms have wholly distinct meanings. But a logical answer exists to this assumption: A sidewalk is always a pedestrian way, but the term "pedestrian way" is broader than solely being a sidewalk….
Once you recognize that "all sidewalks are pedestrian ways, but that not all pedestrian ways are sidewalks," then there is no mystery created by statutory language that, for example, says pedestrian ways must be treated "as if" they are sidewalks. The meaning of that section is that the rules applying to sidewalks also apply to pedestrian ways, even those that are not sidewalks. And, as the Chief Justice points out, that latter category includes a lot of things, such as "a skywalk or a walking path in a public park not adjacent to the highway."
I would add that the eminent domain context is also notable here. In Wisconsin, as in many other states, statutes granting the power of eminent domain must be "strictly construed" against the government. As a previous Wisconsin Supreme Court decision put it, courts must "strictly construe the condemnor's power . . . while liberally construing provisions favoring the landowner." If the government is going to use the "despotic power" of eminent domain, property owners should at least be given clear indication about the purposes for which their land might be taken.
The majority refused to apply this rule here, because it claimed that the relevant statutes are "not ambiguous" and clearly indicate the government can use eminent domain to condemn property to build sidewalks. That assertion is obviously wrong. It takes hyperconvoluted legal reasoning to reach the conclusion that a sidewalk is somehow not a "pedestrian way": the kind of legalistic mumbo-jumbo that leads people to hate lawyers!
Counterintuitive technical legal reasoning has its place. But Wisconsin Supreme Court was wrong to deploy it here.
While the decision reaches a dubious result, it could be a useful teaching tool for law professors. To get around the obvious import of the text, the majority deploys a variety of complex arguments, not all of which I have covered here. And the dissent has good answers to them. The case can help students see various ways in which judges can use context to get around a seemingly clear textual meaning. But I think the majority opinion is ultimately an example of what not to do.
