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, Gentle Reader: 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 any who read this (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 their 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 Curmie 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.
Curmie is 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.
No comments:
Post a Comment