[Two Curmie’s Conjectures columns in a week! We are blessed. I was also thrilled to have this particular issue examined by a non-lawyer, because in many areas, legal training fogs clear thinking when it is supposed to do the opposite. Also, of the two options Curmie closes with, the majority of lawyers I’ve discussed this case with vote for the second.

Oh—Curmie had a standard pedestrian sign as his illustration for this post, but I saw another opportunity to use one of my all-time favorite Charles Addams cartoons, and went for it. I hope he doesn’t mind—JM]

I was tempted to call the recent decision by the Wisconsin Supreme Court in the case of Sojenhomer v. Egg Harbor a head-scratcher, but I fear that such an assessment might be a little too kind.

Sojenhomer LLC owns a brew pub/restaurant located along County Highway G in the village of Egg Harbor.  They used a small portion of that land, .009 acres, for patron parking.  The village, citing safety concerns, sought to put in a sidewalk where those parking spaces currently are.  To do so, they sought to condemn that small area under eminent domain regulations.

The problem with their plan is that Wisconsin state law bars the use of condemnation to acquire property to establish or extend “a pedestrian way….”  So the case boils down to whether or not a sidewalk is indeed “a pedestrian way.”  The majority opinion, written by Justice Rebecca Frank Dallet, says no, to which I reply, “then what the hell is it?”

Let me state my bias up front: for reasons associated with the Appalachian Trail being re-routed through my parents’ property half a century ago, I’m going to side with property owners against governmental interests unless there’s a compelling reason not to.  It’s also worth mentioning that members of the Wisconsin Supreme Court are elected to those positions, making them de facto politicians.  And politicians, even those who claim otherwise, are quite fond of the exercise of governmental power. 

Okay, moving on…

A ”pedestrian way” is defined by Wisconsin law as “a walk designed for pedestrian travel.”  Well, that seems clear enough, and as there are no modifiers or exceptions to the definition, that means that any walkway so designed is indeed a “pedestrian way.”  That would include crosswalks, nature trails, pedestrian bridges, etc.  It would also, obviously (!), include sidewalks, which are indeed the first thing I’d think of when encountering the term. 

I’m no lawyer, and I’ll happily yield in matters of law and legal interpretation to Jack or to any of the other lawyers who frequent this page (or you can read Jonathan Turley’s column on the case), but, as one of my grad school mentors once told me in another context, I know something and I can read.  Here’s my take, for better or for worse:

The majority, which overturned a lower court ruling in Sojenhomer’s favor, bases its decision on two factors: that sidewalks are considered part of the road and there could be no legal objection to widening the road, and that “sidewalks” and “pedestrian ways” are both listed in some laws as if they’re different, creating “surplusage.”  But a non-existent sidewalk doesn’t strike me as even possibly being part of an existing road, and redundancies, while annoying in their way, occur with grim regularity. 

Just last night I saw an ad for some medication which cautioned potential patients to discontinue use of their product if symptoms did not improve or if the condition got worse.  Getting worse is clearly a subset of not getting better; sidewalks are just as clearly a subset of “pedestrian ways.”  The majority opinion strikes me as overly legalistic at best.  Yes, it would be nice if the law hadn’t been written by someone whose degree is from the University of Redundancy University, but the failure of some legislator to say “other pedestrian ways” should not infringe on Sojenhomer’s rights under the law. 

The similarities between the reasoning of this case and the recent SCOTUS decision on Garland v. Cargill are certainly noticeable.  Both concern themselves with definitions that aren’t necessarily what the average person would be thinking.  But there’s a legitimate difference of opinion in Garland: bump stocks do not convert a semi-automatic weapon into a “machine gun” according to the definition of a 90-year-old law, but they almost surely would have been banned by that legislation had Congresscritters of that day been able even to contemplate technology that wasn’t going to emerge for another 70 years or so.  I agree with the majority, but I see the minority’s point.

Here, finding a legitimate rationale for the village’s case is a struggle.  But one needn’t be a lawyer to understand and agree with the dissent of 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” and intended ‘for the use of persons on foot.’”

It’s also important to understand what isn’t relevant here.  Are we talking about a tiny area, .009 acres, or a little under 400 square feet, enough room for perhaps three average-sized vehicles to park?  Yes, we are, and it doesn’t matter.  Should the law be revised?  Perhaps, and it doesn’t matter.  Is the village operating in good faith in citing safety concerns as their reason to want to add a sidewalk?  Almost certainly, and it doesn’t matter. 

This boils down to a single question: is a sidewalk a “pedestrian way”?  Yes.  Duh.  Next question.

I’m left with only two possibilities for the court’s decision: either the majority of the justices have a command of the English language not significantly greater than that of a turnip, or they really, really wanted to impose eminent domain, and would grab hold of any rationale, however flimsy, to make that happen.  I’m not sure which is worse.

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Bonus: Here’s a link to commentary on another forum by Curmie on the still controversial Kelo decision, also involving eminent domain.