Wisconsin Supreme Court Rules Sidewalks Not 'Walkways' To Allow Eminent Domain Seizures - JONATHAN TURLEY

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Wisconsin lawyers are already sending a similar decision to Bumble, which is a testament to judges' ability to ignore plain meaning to achieve desired results.

When the Mad Hatter in Alice in Wonderland asked “why is a crow like a desk?” the Wisconsin Supreme Court asked why a sidewalk is not like a pedestrian path. The result is just as maddening.

It was the State's effort to create more sidewalks. In the face of landowners' resistance, the state used eminent domain to simply condemn the land and reclaim it for sidewalks. However, Wisconsin has strong protections for homeowners, including statutes that expressly state that the power of eminent domain must be “strictly interpreted” against the government.

In addition, there is a statute that expressly prohibits the use of eminent domain to take property for a “walkway”.[s].” It defines a “pedestrian way” as “a walkway designated for the use of pedestrian travel”.

For all Bumblers and non-Bumblers, this seems to describe a sidewalk, which is defined by Merriam-Webster as “a usually paved walk for pedestrians at the side of a street.”

He doesn't say it like that Judge 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. To begin with, both § 346.02(8)(a) and (b) use the terms “sidewalk” and “pedestrian way” to mean that each term has a separate, nonoverlapping meaning. … Section 346.02(8)(b) states that pedestrian ways must be treated “as if” they were sidewalks for utility installation and assessment. The phrase “as if” indicates that one category (footway) should receive the same treatment as another category (sidewalks). It is in the same way that the legislature used “as if” in, for example, Wis. Stat. § 53.03, which provides 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 for guardianship purposes, sidewalks are not sidewalks but should be treated as if for installation purposes · creation and evaluation of public services.

The analogy is poor, in my opinion. The treatment of a foreign state as a national state captures the fact that both are units of government with similar inherent functions and powers. This is a far cry from saying that a “pedestrian path” is NOT a “sidewalk”.

Judge Dallet then adds:

The language of § 346.02(8)(a) also suggests that sidewalks are not pedestrian ways. This section makes the traffic rules relating to sidewalks also applicable to pedestrian paths. But if sidewalks are pedestrian walkways, the traffic rules applicable to sidewalks would already apply to pedestrian walkways. The point here, to be clear, is not that reading the term “pedestrian way” to include sidewalks would result in a surplus…

However, this may indicate that “pedestrian thoroughfares” are a broader category than just sidewalks. It does not suggest that sidewalks are not pedestrian paths.

This appears to be the point of Chief Justice Annette Kingsland Ziegler's dissent:

The plain language of the statute demonstrates that the term “walkway” is broadly defined and includes sidewalks. A sidewalk—that part of the highway created for the movement of people on foot—is clearly a subset of pedestrian lanes—separated or designated walkways for pedestrian use. It is a plain, common-sense interpretation of the statutory language that a “walkway designated for the use of pedestrian travel” necessarily includes that portion of the highway “constructed for the use of pedestrians . . .”

[I]In other words, a closer look at the plain meaning of the statutes reveals that all sidewalks are pedestrian walkways, but not all pedestrian walkways are sidewalks…

What is particularly troubling about the majority's decision is that it avoids the strict requirement of the law against the government as inapplicable simply by declaring that there is no ambiguity in the language of the statutes, an absurd 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. Although sometimes cited as an actual case, it appears to be an opinion written to show how legal interpretations can take absurd dimensions to result in desired ends.

In Regina v. United States Ojibway (8 Criminal Law Quarterly 137 (1965-66)), a member of a Canadian Indian tribe shoots a suffering horse but is later charged under a criminal provision for shooting a bird under the Law of small birds (RSO). Blue, J., delivers the opinion of the court, allowing the appeal, saying:

For the purposes of Law of small birds, all animals with two legs and covered with feathers are birds. This, of course, does not imply that only two-legged animals will qualify, as the legislative intent is for two legs to be the minimum requirement. Therefore, the statute also contemplated multi-legged animals with feathers.

Counsel contends that given the purpose of the statute only small animals “naturally covered” with feathers could have been contemplated. However, if that had been the intention of the legislature, I am sure that the phrase “naturally covered” would have been expressly inserted just as “Length” was inserted in the Landing Act.

A horse with feathers on its back must therefore be considered, for the purposes of this Act, a bird, a fortiori a pony with feathers on its back is a small bird.

In Wisconsin, it seems the Supreme Court would have simply said that the pony, since a pony can be treated “as if” it were a horse, is not a horse.

SOURCE LINK HERE

Wisconsin Supreme Court Rules Sidewalks Not 'Walkways' To Allow Eminent Domain Seizures – JONATHAN TURLEY

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