The Pedestrian Ways of the Wisconsin Supreme Court

Curmie was tempted to call the recent decision by the Wisconsin Supreme Court in the case of Sojenhomer v. Egg Harbor a head-scratcher, but he fears 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, 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.

Musings on "Representation"

Definitions, even of common words, play a major role in the politics and jurisprudence of the country.  Those of us old enough to remember the Clinton administration will recall the notorious quibbling over the word “is.”  Of particular interest of late is the fact that when a law offers a definition of a term, it is that definition that must be considered, irrespective of what is termed “common parlance.”  Thus, determining what is meant by “so” became an issue in Van Buren v. United States three years ago, and a 90-year-old statute’s definition of “machine gun” was the determining factor in the recent Garland v. Cargill case.

There are also, of course, many words that have multiple meanings.  In one of the first essays in this iteration of my blogging life, after Curmie moved over from LiveJournal (yes, I’m old), I wrote about the word “authority,” noting that it can refer to someone with expertise or someone with power.  A glance at virtually any university, corporation, or government agency will amply demonstrate that these two definitions are at least as likely to be in conflict as in accord.

Curmie has been thinking lately about another word (and its variations) that carries multiple, often contradictory, definitions: representation.  Generally, the term is presented in a positive light, as, for example, we hear of black or female children seeing cinematic superheroes (and -heroines) who resemble themselves.  Of course, this impulse can be carried too far, to re-write history or diverge from the character description of the original author, but the concept remains a net positive.

Along these lines, representation is also used to describe the manner in which a subject is communicated to the reader or viewer.  Consciously or unconsciously, media reports on virtually any topic will suggest that a particular perspective is accurate or true.  But no comprehensive picture can ever emerge.  We have neither the time nor the inclination to present or to receive all the details.  Inevitably, something that the receiver might consider important is omitted by the sender.  This could, but need not, be the product of malice or mendacity; it could be that the sender just didn’t regard that detail as essential.

Back in the 18^th century, one of the rallying cries of the nascent revolutionary movement in the American colonies was “no taxation without representation.”  The slogan suggested, with no little justification, that the people subject to laws, taxation, etc., ought to have a role in determining the policies under which they would live.

That said, Curmie’s Representative, i.e., Congresscritter, was for almost two decades Loony Louie Gohmert, one of the dimmest bulbs ever to flicker in the legislative firmament.  Was I represented by him?  Well, to the extent that, thanks in large part to Tom DeLay’s adept gerrymandering, Gohmert got voted into office in the congressional district I inhabit, yes.  But to suggest that he represents anything close to Curmie’s value system, social conscience, or political predilections is absurd.

Back when the Curmie Awards were a thing, the whole idea was to call attention to the worst representatives of the educational profession, not to demean educators in general, but indeed to suggest that the Curmie nominees were outliers whom I did not wish to represent me or the thousands of other teachers at all levels who are just trying to teach our respective students the course material in the most effective manner we can.

Similarly, especially as the 2024 election campaigning really ramps up (there has been little doubt this year who the presidential nominees would be, more’s the pity), Curmie notes an upswing of people outside a group deciding (worst case scenario at all times, of course) what people inside that group believe.  And here’s where the notion of representation kicks in.

Curmie, rightly or wrongly, prides himself on being an independent thinker.  His Political Compass score places him securely in the Libertarian Left, but he also notes that issues such as gun control or DEI make it difficult to earn both of those descriptors simultaneously. 

More to the point, Curmie has no desire to be represented by the likes of Jamaal Bowman, he of the fire alarm scandal, or Alexandria Ocasio-Cortez, who issued a screed on Son-of-Twitter condemning the audacity of a lifelong Democrat active in party politics for decades to challenge Bowman in a primary and… get this… successfully raise money to do so!  (Would it be impertinent to note that AOC got her congressional seat after defeating a 10-term Democratic Rep in a primary?)

But neither does self-described progressive Curmie want to spend all his time distancing himself from those at the fringe of his belief system, just as he suspects that his conservative friends would be quite happy not to be associated with Marjorie Taylor Greene or Lauren Boebert, and would cheerfully not have to keep distancing themselves from the wackadoodles.  But the fact is, those folks do in some sense represent us, because we actually do agree with them on some things.

Ultimately, of course, Curmie’s desire for representation is a function of his ideas, not of his membership in a particular class of people.  In today’s world, the perfect candidate is unlikely to be there, so we’ll just lower the expectations a little.  Show me that you’re not a sociopath, an idiot, or a pathological liar, and we can talk.  That doesn’t leave a lot of candidates on either side of the aisle, alas.