We were all set to write up the Wisconsin Supreme Court's recent opinion in Sojenhomer LLC v. Village of Egg Harbor, No. 2021AP1589 (June 19, 2024) -- after all, we were already following the case -- when Lawprof Ilya Somin beat us to the punch: "Wisconsin Supreme Court Rules Sidewalks are not "Pedestrian Ways" - thus Allowing Local Governments to Use Eminent Domain to Take Property to Build Them."
Short story is that a Wisconsin statute prohibits using eminent domain to take property for a "pedestrian way," and the Village instituted a condemnation action to take Sojenhomer's property for a sidewalk. No way, you say?
Yes way held the Wisconsin court. The key was that pedestrian way was a defined statutory term, and thus not subject to common meanings (which would seem to include a sidewalk as a pedestrian way). The court concluded that the sidewalk did not meet the statute's definition of "a walk designated for the use of pedestrian travel."
Wait, isn't pedestrian travel what sidewalks are for? (Retired Judge Kozinski said so in this case, for example.) Nope held the court, the term must be read in context -- the old in pari materia gambit in the often-malleable rules of statutory constructions. Although as Prof. Somin points out, "[w]hen the legislature specifically defines a term, that definition trumps any indirect contextual inferences that judges can extract from other passages of the law."
The majority's "clever" argument didn't convince the entire court, and the Chief Justice wrote separately that the term "pedestrian way" includes sidewalks. Duh.
As Professor Somin points out, the majority pretty much ignored the special rule of statutory construction usually applicable to eminent domain statutes: they're supposed to be interpreted strictly against the condemnor, and liberally in favor of the constitutional right to keep property. As he puts it "[c]ounterintuitive technical legal reasoning has its place. But the Wisconsin Supreme Court was wrong to deploy it here."
Elections have consequences!
We recommend you read Professor Somin's post in its entirety.
And oh yes, bees are still fish in California.
Sojenhomer LLC v. Village of Egg Harbor, No. 2021Ap1589 (Wis. June 19, 2024)
