Wisconsin Supreme Court bolsters government’s eminent domain power
Sidewalk decision puts property owners on notice: Government can take your land despite statutory prohibitions, and pay less than market value
We shouldn’t have to talk about this, but once again the Wisconsin Supreme Court has made it necessary to show just how absurd government is—it’s not that hard, really—and just how far they will go to use absurdities (gaslighting) to bolster state power.
This week the issue is sidewalks. That’s right, Badger state property owners, the Supreme Court has ruled that government can take your property for a sidewalk, using eminent domain and paying less than your market value, even though state law forbids government from doing so. More specifically, state law forbids government from seizing property to extend or establish a “pedestrian way,” which the statute simply defines as “a walk designated for the use of pedestrian travel.”
Sidewalk, right?
Nope! the court said in its decision. A sidewalk is definitely not a pedestrian way, meaning that it is definitely not a walk designated for the use of pedestrian travel, even though state statutes define a sidewalk as “that portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, constructed for use of pedestrians.”
Meaning government can seize it.
Got that? Yeah, neither did I. Needless to say, and as usual when the liberal-minded majority rules, I was confused, so, to understand the latest government gaslighting, I turned to the great Curtice Mang to help me figure it out. You can read his column on the sidewalk decision here, but Mang boils it down to Wisconsin’s greatest love—cheese. OK, he boiled it down to its second greatest love—beer. OK, to its third greatest love: Identity politics, which is why we have four liberals serving on the state’s highest court. To help us put the decision in perspective, Mang quoted liberal justice Rebecca Frank Dallet, who wrote the majority opinion:
“The conventional view of a sidewalk as a pedestrian walkway is, well, rather pedestrian. This court believes in trans transportationality—the understanding that a sidewalk can be anything it chooses to be. If it wants to be a sidewalk, this court is fine with that. However, should it decide it wants to be a pedestrian walkway or even a Republican of some sort – granted, that would never happen in Madison—we are fine with that too, except for the Republican part.”
OK, you got me, that’s not a real quote, though it is a hilarious one. Curtice, one of my partners on the podcast Some Things Considered (which everybody should subscribe to), is a satirist, after all, but it might as well have been an authentic quote, because it makes about as much sense as the real ones.
It’s an important story because it provides yet another peek into the methodology of the progressive mindset—tortured interpretations of rules and regulations and statutes that subvert the very meaning and intent of what lawmakers intended.
(Tomorrow morning I will be running an oldie but goodie on this topic.)
OK, so let’s dig in …
Even though the law says sidewalks are those portions of roadways that are constructed for pedestrian use, and a pedestrian walk is “a walk designated for the use of pedestrian travel,” the court reaffirmed the circuit court, which was overturned by the appeals court, that "no sidewalks are pedestrian ways and no pedestrian ways are sidewalks.”
This is going to come as big news to sidewalkers who think these nice paved pathways were created for them.
Usually, the progressive methodology is employed by the bureaucracy in all its glorious manifestations, but sometimes, as here, bureaucratic thinking emerges in the other branches of government, which of course now includes the corporate media and, well, most big corporations themselves. So, by my count, five branches of government, though the legislative branch seems to be going the way of Pluto, that is to say, as astronomers now classify poor Pluto as a dwarf planet, an orbiting unit but one so small and weak it is inferior to the real planets (politically incorrect, I know, but, hey, I’m just the messenger here), so it is time reclassify America’s legislatures as a dwarf branches of government—weak and inferior but still in the mix, at least for show.
A few days ago, for example, I wrote about this mindset with the DNR’s attempt to ban possession of all firearms near any body of water with fish in it, ostensibly to prevent crazed anglers from shooting fish. The thing is, that could rule out gun possession in most of northern Wisconsin. As I pointed out (or, more accurately, as the Wisconsin Institute for Law & Liberty pointed out), while the bureaucrats ostensibly wrote that rule to prevent guns being used to shoot fish, that was already banned. The added ban on possession in addition to the use of firearms to shoot fish was superfluous and thus speaks to another motive.
This is the rule of rule creep, and underlying it is a common tactic of tyranny: Gaslighting. When the government tells you the elimination of a constitutional freedom is needed to remedy a social problem, even though the regulation of that freedom has already fixed the problem—no one shoots fish in Wisconsin and it is already prohibited—you are being gaslighted.
Then there is an ongoing challenge in northern Wisconsin about boathouse roofs used as decks. For years, especially while Democrats ruled the roost in the state, nobody could use the flat roof of a boathouse as a deck, upon which they and their families might sit and enjoy the water and the view.
No sir, no fun for you, the DNR bellowed. A boathouse is to be used for boat storage and boat storage only and if you aren’t using it for that, you must let it rot and fall into the water, given that we won’t allow you to repair it beyond 50 percent of its lifetime value.
Well, of course, in 2010, Republicans came to power, fueled by voter distaste for such absurdities, and changed state statutes. That’s right, the state’s elected representatives (aka dwarf lawmakers) changed the law to permit boathouse owners to use their roofs for a deck and to maintain the boathouses. Oh good, said Oneida County, which not too long ago set about to revise its shoreland ordinance, and one of the things it is attempting to do is to rewrite the code to allow not just the decks but—as one might expect—stairs to get to the deck.
Well, now, just hold on a second, the DNR is bellowing once more. A stairway to a boathouse roof is not deemed by the bureaucrats (aka the real lawmakers) to be part of the boathouse structure. In fact, the DNR considers it to be a non-exempt accessory structure (a boathouse is exempted), and non-exempted accessory structures aren’t allowed in the shoreland zone.
Thus, under the DNR’s view, you can have a boathouse rooftop deck but you can’t have any stairs to get to it. They present this with a straight face, as if lawmakers, who likely didn’t think about stairways and the possibility of such absurd interpretations, intended that outcome. Actually, I don’t know if they present this with a straight face because they don’t show up to meetings to defend it, even though they are repeatedly invited.
And so we have the bureaucratic rule that rules must lead to absurd conclusions. They are gaslighting us. Stay tuned on that one.
So now let’s get to another methodology—the rule of mandatory ambiguity, necessitating interpretive decisions by activist judges no matter what the actual statutory text states or how clear it is. That brings us to sidewalks, if we can find a paved path to get us to the decision.
As background, the case is Sojenhomer v. Village of Egg Harbor, and, in the 4-3 decision, the majority determined that a sidewalk is not a "pedestrian way." They thereby enabled local governments to use eminent domain to condemn property to build sidewalks, despite the state law forbidding the use of eminent domain to take property for “pedestrian ways.”
Even the liberal justices got the textual definition right, observing that the relevant statute defined “a pedestrian way” as “a walk designated for the use of pedestrian travel.” Still, this group is simply not one to let the actual text of a statute get in the way of a good leftist interpretation.
Rather than letting the clear definition stand, the justices went looking for ambiguity, as chief justice Annette Kingland Ziegler said in her dissent. Sure enough, they foraged through the fog until they found “several indications” that the definition of a pedestrian way does not include sidewalks. For instance, Dallet wrote in the decision, one term was used in one section of the law and the other was used in another section. There! Case closed!
And then there was that damn simile. Anytime lawmakers insert similes into the law, you can bet there’s going to be trouble, and par for the course here. Dallet wrote:
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).
So they are not the same, Dallet asserted.
Then Dallet turned to another section that she said suggests that sidewalks are not pedestrian ways: “All of the applicable provisions of this chapter pertaining to highways, streets, alleys, roadways and sidewalks also apply to pedestrian ways. A pedestrian way means a walk designated for the use of pedestrian travel”:
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.
Dallet said the justices relied on side-by-side references to sidewalks and pedestrian ways in the statute simply because the text itself indicated that those terms have separate, non-overlapping meanings. That, despite the fact that the legislature defined the term so clearly that it should have ruled out deciphering textual references.
So, I guess she has us.
But wait! …
Here she comes to try and save the day. In a dissent, chief justice Annette Kingsland Ziegler was on her way!
Seriously, it didn’t take her long to destroy the majority’s arguments.
First, Ziegler intoned, 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.’ The Village exceeded its condemnation authority when it acquired Sojenhomer's property through condemnation to construct a sidewalk.
Indeed, Ziegler concluded, a closer look at the plain meaning of the statutes reveals that all sidewalks are pedestrian ways, but not all pedestrian ways are sidewalks. They are distinct terms, but that doesn’t mean they don’t overlap or that one is not nested within another, and nothing in the statutes indicates otherwise, Ziegler argued.
She demolished the majority’s contention that, because there is language that the rules of the road for sidewalks also pertain to pedestrian ways, sidewalks and pedestrian ways are separate things. If they weren’t, the majority argued, the rules of the road applicable to sidewalks would already apply to pedestrian ways.
That is in fact a sophomoric argument and not true. Without that language, the rules for sidewalks would only apply to sidewalks, not other pedestrian ways. That statutory language extends the rules to all pedestrian ways.
Ziegler explained it this way:
Because the term pedestrian ways is broader than the term sidewalks, the inclusion of the term sidewalks in [that paragraph] makes the provisions pertaining to sidewalks in ch. 346 applicable to all pedestrian ways that are not sidewalks. Put differently, if the word ‘sidewalks’ was omitted from [that paragraph] then the provisions pertaining to sidewalks in ch. 346 would not apply to pedestrian ways that are not sidewalks. Accordingly, under this statute, the term ‘sidewalks’ still serves a necessary function even though the term ‘pedestrian ways’ includes sidewalks.
Just because the two terms are listed independently in the statute does not mean they must be intended to be interpreted differently and can have no commonality nor overlapping meaning, Ziegler wrote:
While we interpret statutes so as to avoid surplusage, when ascertaining statutory meaning, ‘surplusage’ is not to be assumed merely because the legislature has used a broad term. This is especially so where statutorily-provided definitions overlap because one statutorily-defined term (pedestrian way) is broadly defined, while the other statutorily-defined term (sidewalk) is more narrowly defined. Sometimes the legislature, as here, ‘deliberately paints with a very broad . . . brush.’
Ziegler also took apart the majority’s argument that the ‘as if’ language in the law supported its conclusion that a sidewalk and pedestrian way are entirely distinct concepts:
It opines that a sidewalk—statutorily defined as that portion of the highway constructed for use of pedestrians—and a pedestrian way—statutorily defined as a walk designated for the use of pedestrian travel—are distinct because of the statutory language ‘as if.’ … According to the majority, if a pedestrian way could be treated ‘as if’ it was a sidewalk, then a pedestrian way cannot be understood to include a sidewalk: the one term is entirely separate and distinct from the other.
But Ziegler said it was more sensible to conclude that sometimes a pedestrian way is not a sidewalk and the ‘as if’ language recognizes this fact:
With this reading, the statute has meaning. … So, by definition, it is understood that a pedestrian way contains all sidewalks but also non-sidewalks. Thus, when the statute says that pedestrian ways may be treated ‘as if’ they are sidewalks, the words ‘pedestrian ways that are not sidewalks’ have not been added. Rather, it is simply what the text reasonably implies.”
There are all sorts of pedestrian ways that are not sidewalks, the chief justice asserted, such as a skywalk or a walking path in a public park not adjacent to the highway. The statute defining a pedestrian way is broad, placing no limitations on where such a “walk designated for the use of pedestrian travel" may be located, Ziegler wrote:
In contradistinction, sidewalks are narrowly defined and constrained by their location. Sidewalks are that ‘portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property line . . . .’
But none of that means they are not pedestrian ways, Ziegler asserted.
All the legal gymnastics aside, Ziegler asserted, it all comes down to the plain meaning of the statute. In the end, Ziegler wrote, the majority’s opinion actually actually leads, once again, to an absurd result:
In sum, a pedestrian way is defined as a “walk designated for the use of pedestrian travel.” A sidewalk is more narrowly defined as "that portion of a highway . . . constructed for use of pedestrians" and "for the use of persons on foot." Were the majority correct, then a sidewalk could never be a walk designated for pedestrian travel. This strained interpretation is untethered from the plain meaning of the statutory language.
That is pretty hard to argue with.
To make a long story short and to return to modern progressive methodological manipulations, when the government tells you that part of a roadway that is constructed specifically for pedestrian use is in fact not “a walk designated for the use of pedestrian travel,” you are being gaslighted.
And in this case, as is usually the case, the gaslighting is for a specific purpose, to increase state power over individuals and their property. Sidewalks might not seem to be such a serious takings issue, but it is. First of all, people paid for those strips of property, and, if the government wants it for a sidewalk, and deems it necessary for public safety, then, as Ziegler suggested. they should pay the property owner a fair price. Indeed, Sojenhomer’s appraisal was $57,500, but Egg Harbor only wanted to pay $38,500.
Not an insignificant takings.
Second, this is once again a demonstration of the growth of state power. If statutory prohibitions on eminent domain takings are so easily overcome, what is next, and whose private property is in the crosshairs? Eminent domain is a powerful weapon and even more since the disastrous Kelo v City of New London decision that government can use eminent domain to transfer land from one private owner to another private owner to further economic development.
So who is next?
More of these eminent domain cases are coming, both in Wisconsin and elsewhere, but this one represents a huge setback for those who oppose government’s absolute control of land. It’s even worse—one more strike by a powerful entrenched elite government that simply ignores the text of statutes and legislative intent to expand state power.
When they say they’re preserving democracy, what they mean is that they are preserving and expanding state power. And that’s the biggest gaslighting of all.