Sojenhomer LLC v. Village of Egg Harbor ( 2024 )

2024 WI 25SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1589
COMPLETE TITLE: Sojenhomer LLC,
Plaintiff-Appellant,
v.
Village of Egg Harbor,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 407 Wis. 2d 587, 990 N.W.2d 267(2023 - published)
OPINION FILED: June 19, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 19, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Door
JUDGE: David L. Weber
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, KAROFSKY, and PROTASIEWICZ, JJ.,
joined. ZIEGLER, C.J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Richard J. Carlson, Ashley C. Lehocky and Town Counsel
Law & Litigation, LLC, Kaukauna. There was an oral argument by
Ashley C. Lehocky.
For the plaintiff-appellant, there was a brief filed by
Tyler D. Pluff, Jon R. Pinkert, and Pinkert Law Firm LLP,
Sturgeon Bay. There was an oral argument by Tyler D. Pluff.
An amicus curiae brief was filed by Clayton P. Kawski,
assistant attorney general, with whom on the brief was Joshua L.
Kaul, attorney general, on behalf of Wisconsin Department of
Transportation. There was an oral argument by Clayton P. Kawski,
assistant attorney general.
An amicus curiae brief was filed by Ryan Sendelbach, Claire
Silverman, and League of Wisconsin Municipalities, Madison, on
behalf of League of Wisconsin Municipalities.
2024 WI 25NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1589
(L.C. No. 2020CV101)
STATE OF WISCONSIN : IN SUPREME COURT
Sojenhomer LLC,
Plaintiff-Appellant,
FILED
v. JUN 19, 2024
Village of Egg Harbor, Samuel A. Christensen
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, KAROFSKY, and PROTASIEWICZ, JJ.,
joined. ZIEGLER, C.J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA FRANK DALLET, J. The Village of Egg Harbor
had a problem. The busy intersection of County Highway G and
State Highway 42 was dangerous for both pedestrians and
motorists. Building a sidewalk along the east side of County
Highway G would help solve the problem, but it required
condemnation of .009 acres of property belonging to Sojenhomer
LLC.
No. 2021AP1589
¶2 Sojenhomer contested the condemnation, arguing that it
violates Wis. Stat. §§ 32.015 and 61.34(3)(b) (2021-22).1 Those
statutes provide that property cannot be acquired by
condemnation to establish or extend a "pedestrian way," a phrase
that Wis. Stat. § 346.02(8)(a) defines as "a walk designated for
the use of pedestrian travel." Sojenhomer argues that sidewalks
are pedestrian ways, and that the Village therefore lacked
authority to condemn the property to build a sidewalk.
¶3 We disagree. When read in context, the definition of
pedestrian way in § 346.02(8)(a) does not include sidewalks.
Accordingly, we hold that §§ 32.015 and 61.34(3)(b) did not
prohibit the Village from condemning Sojenhomer's property, and
reverse the court of appeals' contrary decision.
I
¶4 The Village began focusing on the safety issues with
County Highway G around 2015. Residents had voiced numerous
concerns about the road, including that it was "too narrow" and
lacked both adequate parking and "a safe place for pedestrians
to walk."
¶5 In response to these complaints, the Village retained
an engineering firm to study the problems and propose solutions.
An engineer first summarized the issues, noting that the road
had "no discernable ditches or storm sewer," which led to "on-
street flooding during large rain events as well as icing issues
1All subsequent references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise indicated.
3
No. 2021AP1589
in the winter months." He also explained that there was "no
continuous sidewalk for pedestrians," and that during the peak
summer season, "the effective width of the roadway is narrowed
due to parking on both sides of the roadway which further
reduces the area available for pedestrians." This was
particularly problematic since pedestrians often used County
Highway G to access a nearby trail, and had to cross the road at
a curve with limited visibility.
¶6 Together with the engineering firm, the Village
developed a plan to address these safety concerns. The plan
included adding storm sewers, buried utility lines, and new
street lighting; limiting parking to the west side of the road;
improving crosswalks; and adding a new sidewalk on the east side
of the road where Sojenhomer's property sits. The Village
planned to use its condemnation powers under Wis. Stat. §§ 32.05and 61.34 to acquire the property necessary for the project,
including .009 acres that belonged to Sojenhomer.2 It is
undisputed that the Village's sole reason for acquiring the .009
acres was to build a sidewalk at that location.
¶7 Sojenhomer operates the Shipwrecked Brew Pub and
Restaurant (the dark structure on the right side of the photo
below) on the property, and previously used the .009 acres for
parking, as depicted here:
The Village simultaneously sought to acquire a temporary
2
limited easement over .071 acres of Sojenhomer's property for
construction purposes. That temporary limited easement is not
at issue in this case.
4
No. 2021AP1589
¶8 Sojenhomer brought suit pursuant to Wis. Stat.
§ 32.05(5),3 which authorizes a landowner to challenge a
municipality's right to take the landowner's property "for any
reason other than that the amount of compensation offered is
3 The court of appeals noted that even though Sojenhomer's
complaint did not cite § 32.05(5), it "appear[ed] to fall under"
that statute. See Sojenhomer LLC v. Village of Egg Harbor, 2023
WI App 20, ¶9 n.2, 407 Wis. 2d 587, 990 N.W.2d 267. In its
briefing before this court, Sojenhomer confirms that this case
is a "challenge of [a] taking under Wis. Stat. Sec. 32.05(5)."
5
No. 2021AP1589
inadequate."4 Id.; see also Christus Lutheran Church v. DOT,
2021 WI 30, ¶¶23-24, 396 Wis. 2d 302, 956 N.W.2d 837 (explaining
that an action pursuant to § 32.05(5) may challenge a
municipality's statutory authority to condemn the property). In
its complaint, Sojenhomer contended that the condemnation was
prohibited by Wis. Stat. § 32.015, which bars the use of
condemnation to acquire property to establish or extend "a
pedestrian way . . . ." See also Wis. Stat. § 61.34(3)(b)
(imposing a similar restriction specifically on villages).
According to Sojenhomer, sidewalks are pedestrian ways, and as a
result, the Village may not condemn its property to build a
sidewalk.
¶9 The circuit court5 granted summary judgment in the
Village's favor. As the circuit court explained, Sojenhomer's
complaint depended on its central contention that sidewalks are
The statutory process for condemnation differs depending
4
on the reason the municipality wants to condemn the property.
Here the parties agree that the Village was required to, and
did, comply with the requirements of Wis. Stat. § 32.05, which
applies when a village seeks to condemn property for "public
alleys, streets, [or] highways . . . ." Pursuant to the
requirements of that section, the Village issued a relocation
order, obtained an appraisal of Sojenhomer's property, provided
that appraisal to Sojenhomer, and attempted to negotiate a sale.
See § 32.05(1)(a), (2)(a)-(b), (2a). After Sojenhomer obtained
a competing appraisal, and the parties were unable to reach a
negotiated sale of the property, the Village made a
substantially higher jurisdictional offer pursuant to
§ 32.05(3). Sojenhomer did not accept the jurisdictional offer,
and instead brought this case. See § 32.05(5).
The Honorable David L. Weber of the Door County Circuit
5
Court presided.
6
No. 2021AP1589
"pedestrian ways" as defined in Wis. Stat. § 346.02(8)(a). The
circuit court rejected that contention, however, concluding that
"no sidewalks are pedestrian ways and no pedestrian ways are
sidewalks." That conclusion rested on two premises. First,
that sidewalks are defined by Wis. Stat. § 340.01(58) as part of
the roadway, and municipalities indisputably may condemn
property to expand roads. See Wis. Stat. § 32.05. And second,
that reading "pedestrian way" to include sidewalks would result
in surplusage, since § 346.02(8)(a) and (b) refer to both
sidewalks and pedestrian ways. Based on these premises, the
circuit court held that "a sidewalk is not a pedestrian way,"
and thus that § 32.015 did not prohibit the Village from
condemning Sojenhomer's property to build the sidewalk.
¶10 Sojenhomer appealed, and the court of appeals
reversed. Like the circuit court, the court of appeals framed
the central question as "whether a sidewalk is a 'pedestrian
way' as that term is used in both Wis. Stat. §§ 32.015 and
61.34(3)(b)." Sojenhomer LLC v. Village of Egg Harbor, 2023 WI
App 20, ¶25, 407 Wis. 2d 587, 990 N.W.2d 267. The court of
appeals concluded that all sidewalks are pedestrian ways because
they fall within the "broad" and "general definition" of
pedestrian way: "[A] walk designated for the use of pedestrian
travel." Id., ¶26; see also § 346.02(8)(a). Additionally, the
court of appeals rejected the circuit court's concern that this
interpretation would result in surplusage in § 346.02(8)(a) and
(b), because "the term pedestrian ways is broader than the term
sidewalks." Sojenhomer, 407 Wis. 2d 587, ¶30. For that reason,
7
No. 2021AP1589
the court of appeals concluded that these statutes' use of both
the terms "pedestrian way" and "sidewalk" "still serves a
necessary function even though the term 'pedestrian ways'
includes sidewalks." Id.; see also id., ¶31. Therefore, the
court of appeals reversed the circuit court's decision
dismissing the case.
II
¶11 This case involves statutory interpretation, which is
a question of law that we review de novo. See, e.g., Clean
Wis., Inc. v. DNR, 2021 WI 72, ¶10, 398 Wis. 2d 433, 961
N.W.2d 611. "When interpreting statutes, we start with the text,
and if its meaning is plain on its face, we stop there." Id.We also consider the broader statutory context, interpreting
language consistently with how it is used in closely related
statutes. Id. In doing so, we "generally give words their
common, everyday meaning, but we give legal terms of art their
accepted legal meaning." State v. Kizer, 2022 WI 58, ¶6, 403
Wis. 2d 142, 976 N.W.2d 356 (quoting another source).
III
¶12 The issue in this case is whether sidewalks are
"pedestrian ways" as that term is defined in Wis. Stat.
§ 346.02(8)(a). If sidewalks are pedestrian ways, then the
parties agree that Wis. Stat. §§ 32.015 and 61.34(3)(b)
prohibited the Village from acquiring Sojenhomer's property to
build one. That is because both §§ 32.015 and 61.34(3)(b)
8
No. 2021AP1589
prohibit the use of condemnation to acquire property to
establish or extend "a pedestrian way,"6 and it is undisputed
that the reason the Village sought to acquire Sojenhomer's
property was to build a sidewalk as part of its broader
reconstruction of County Highway G. See §§ 32.015, 61.34(3)(b).
If sidewalks are not pedestrian ways, however, the condemnation
was permissible under the Village's general authority to condemn
property for road projects. See Wis. Stat. § 61.34(3)(a)
(stating that, except for the purpose of establishing or
extending pedestrian ways, villages may acquire property by
condemnation for public purposes, including roads, and that
condemnation under that subsection "shall be as provided by ch.
32").
¶13 Sojenhomer argues that sidewalks are pedestrian ways.
It asserts that the definition of "pedestrian way" in
§ 346.02(8)(a) is broad, and encompasses all "walk[s] designated
for the use of pedestrian travel" including sidewalks,
recreational trails, walking paths, and anything else designed
for use by pedestrians, regardless of location.
Section 32.015 states that "[p]roperty may not be acquired
6
by condemnation to establish or extend . . . a pedestrian way,
as defined in s. 346.02(8)(a)." Section 61.34(3)(b) states that
village boards "may not use the power of condemnation to acquire
property for the purpose of establishing or extending . . . a
pedestrian way, as defined in s. 346.02(8)(a)." Neither party
suggests that the slight differences in wording in these two
sections (i.e. "to establish or extend" and "for the purpose of
establishing or extending") is material.
9
No. 2021AP1589
¶14 The Village, however, urges a contextual reading of
the definition of "pedestrian way," emphasizing how the rest of
§ 346.02(8) and related statutes indicate that sidewalks and
pedestrian ways are two entirely distinct, non-overlapping
categories. Thus, the Village argues that the limitations on
condemnation in §§ 32.015 and 61.34(3)(b) do not apply to
sidewalks at all.
¶15 We agree with the Village. The ordinary meaning of a
statute is dictated by more than the literal meaning of a single
phrase, read in isolation. Rather, as we have emphasized
before, statutes must be interpreted in their entirety, and in
context. See, e.g., Clean Wis., 398 Wis. 2d 433, ¶10.
Following that directive, we first analyze the text of
§ 346.02(8) as a whole. Then, we evaluate the statutory history
and other related statutory provisions, before finally
addressing the text of the limitations on condemnation contained
in §§ 32.015 and 61.34(3)(b). With the full statutory context
in mind, we conclude that the definition of "pedestrian way" in
§ 346.02(8)(a), and the limitations on condemnation in §§ 32.015
and 61.34(3)(b), unambiguously exclude sidewalks.7 Accordingly,
7When a condemnation statute is ambiguous, we "strictly
construe the condemnor's power . . . while liberally construing
provisions favoring the landowner . . . ." Waller v. Am.
Transmission Co., LLC, 2013 WI 77, ¶72, 350 Wis. 2d 242, 833
N.W.2d 764 (quoting another source). Because the statutes at
issue are not ambiguous, we do not apply this principle of
interpretation. See DOJ v. DWD, 2015 WI 114, ¶32, 365
Wis. 2d 694, 875 N.W.2d 545 ("[A] provision can be construed
'liberally' as opposed to 'strictly' only when there is some
ambiguity to construe." (quoting another source)).
10
No. 2021AP1589
we hold that §§ 32.015 and 61.34(3)(b) did not prohibit the
Village from condemning Sojenhomer's property to build a
sidewalk.
A
¶16 We begin with the full text of Wis. Stat. § 346.02(8),
which provides:
(8) Applicability to pedestrian ways
(a) 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.
(b) Public utilities may be installed either
above or below a pedestrian way, and
assessments may be made therefor as if such
pedestrian way were a highway, street, alley,
roadway or sidewalk.
¶17 To summarize, § 346.02(8) does three things. First,
it defines "pedestrian way" as "a walk designated for the use of
pedestrian travel." § 346.02(8)(a). Second, it makes clear
that all of the provisions of Wis. Stat. ch. 346 (titled "Rules
of the Road") pertaining to highways, streets, alleys, roadways,
and sidewalks also apply to pedestrian ways. See id. Third,
and finally, it specifies that utilities may be installed above
or below pedestrian ways, and assessments may be made for
pedestrian ways, "as if" the pedestrian way were a sidewalk (or
a highway, street, alley, or roadway). § 346.02(8)(b).
¶18 Reading the text of this section as a whole, we find
several indications that the definition of pedestrian way does
11
No. 2021AP1589
not include sidewalks. For starters, both § 346.02(8)(a) and
(b) use the terms "sidewalk" and "pedestrian way" in ways that
signify that each term has a separate, non-overlapping meaning.
See Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359
Wis. 2d 385, 856 N.W.2d 874 (explaining that when statutes use
different terms "we generally consider each [term] separately
and presume that different words have different meanings"
(quoting another source)). 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). That is
the same way the legislature used "as if" in, for example, Wis.
Stat. § 53.03, which states that Wisconsin courts "may treat a
foreign country as if it were a state" in guardianship
proceedings.8 See id. (emphasis added). Just as foreign
8In numerous other statutes, the legislature used the
phrase "as if" in this same way. See, e.g., Wis. Stat. § 814.15(specifying that non-party assignees of civil causes of action
are liable for costs "in the same manner as if the [assignee]
were a party"); Wis. Stat. § 66.1105(5)(bf) (providing that
specified tax forms and applications filed before May 31, 1999
should be treated "as if the forms and application had been
filed on or before December 31, 1997"); Wis. Stat. § 815.40(2)
(stating that heirs, devisees, or grantees who receive title to
a portion of a lot or parcel may be treated "as if" they
received title to "the whole lot or parcel" in certain
instances); Wis. Stat. § 645.63(1) (noting that one type of
contingent insurance claim "shall be considered and allowed as
if there were no such contingency"). Each time, the meaning is
the same: Something outside a specified category should be
treated as if it falls within that category.
12
No. 2021AP1589
countries are not states, but should be treated as if they were
for guardianship purposes, pedestrian ways are not sidewalks,
but should be treated as if they were for utility-installation
and assessment purposes.
¶19 The language of § 346.02(8)(a) also suggests that
sidewalks are not pedestrian ways. 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. The point here, to be clear, is not that
reading the term "pedestrian way" to include sidewalks would
result in surplusage. Although the court of appeals, the
circuit court, and the parties all devoted substantial attention
to whether the side-by-side references to sidewalks and
pedestrian ways in § 346.02(8)(a) result in surplusage, we do
not rely on the surplusage canon. See State v. Rector, 2023 WI
41, ¶19, 407 Wis. 2d 321, 990 N.W.2d 213 ("[S]tatuory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage." (quoting another source)).
Rather, we rely on the side-by-side references to sidewalks and
pedestrian ways in § 346.02(8) simply because the text itself
indicates that these terms have separate, non-overlapping
meanings.
¶20 Additionally, interpreting the definition of
"pedestrian way" to include all sidewalks requires us to read
additional language into § 346.02(8)(a) and (b). If Sojenhomer
were right, and sidewalks are pedestrian ways, then we have to
13
No. 2021AP1589
read § 346.02(8)(a) and (b) as follows, with the additional
language underlined:
a) All of the applicable provisions of this
chapter pertaining to highways, streets,
alleys, roadways and sidewalks also apply to
pedestrian ways that are not sidewalks. A
pedestrian way means a walk designated for
the use of pedestrian travel.
(b) Public utilities may be installed either
above or below a pedestrian way, and
assessments may be made therefor as if such
pedestrian way that is not a sidewalk were a
highway, street, alley, roadway or sidewalk.
As we have often said, we interpret the statutory language the
legislature enacted, and will not read into a statute language
that it does not contain or reasonably imply. See, e.g., State
v. Hinkle, 2019 WI 96, ¶18, 389 Wis. 2d 1, 935 N.W.2d 271; State
v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165.
When we interpret the words the legislature enacted, without
adding any additional language, it is apparent that
§ 346.02(8)(a) and (b) simply clarify that a set of rules that
would not otherwise apply to pedestrian ways (the rules of the
road, utility-installation, and assessment provisions governing
highways, streets, alleys, roadways, and sidewalks) are
applicable.
B
¶21 Statutory history and the broader statutory context
lend further support to our conclusion that sidewalks fall
outside the definition of pedestrian way. The phrase
"pedestrian way" first entered the statutes in 1949, when the
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No. 2021AP1589
legislature adopted Wis. Stat. § 85.10(21)(g) (1949-50), and had
the same definition as it does today: "[A] walk designated for
the use of pedestrian travel." Id.9 That same section, § 85.10
(1949-50), already contained a definition of "sidewalk": "That
portion of a highway between the curb lines and the adjacent
property lines, unless local authorities designate otherwise."
Wis. Stat. § 85.10(24) (1949-50). This definition of sidewalk
was subsequently modified to the one in force today, "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."10 See Wis. Stat. § 340.01(58) (1957-
58). As this history demonstrates, the legislature has always
treated sidewalks and pedestrian ways as different things, with
separate statutory definitions.
¶22 Additionally, this history shows that "sidewalk" has——
from the beginning——been a term of art whose meaning differs
dramatically from the ordinary meaning of that word. Although
one might ordinarily think of a sidewalk as separate from the
highway, street, or alley it adjoins, the statutes have long
defined sidewalks as part of that adjoining highway or roadway.
Additionally, the two other provisions relating to
9
pedestrian ways in today's § 346.02(8)(a) and (b) also existed
in substantially similar form in 1949.
This modification clarified that sidewalks were not every
10
portion of a highway between the curb lines and adjacent
property lines, but only included such areas "constructed for
use of pedestrians." See Wis. Stat. § 340.01(58) (1957-58); see
also 1957 Senate Bill 99, explanatory note.
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No. 2021AP1589
Compare Wis. Stat. § 340.01(58), with Merriam-Webster, Sidewalk,
https://www.merriam-webster.com/dictionary/sidewalk ("[A]
usually paved walk for pedestrians at the side of a street.").
Both "highway" and "roadway" are defined terms as well, meaning
"all public ways and thoroughfares and bridges on the same" and
"that portion of a highway between the regularly established
curb lines or that portion which is improved, designed or
ordinarily used for vehicular travel, excluding the berm or
shoulder." Wis. Stat. § 340.01(22), (54). Because these terms
are statutorily defined, their ordinary, dictionary definitions
are irrelevant. See Rector, 407 Wis. 2d 321, ¶10 ("In
discerning plain meaning, we . . . give 'technical or specially-
defined words or phrases' their 'technical or special
definitional meaning.'" (quoting another source)).
¶23 The operative verbs in the separate statutory
definitions of "pedestrian way" and "sidewalk" further
demonstrate that these terms refer to different, distinct
things. Pedestrian ways are "walk[s] designated for the use of
pedestrian travel," while sidewalks are a portion of the
adjoining highway or roadway "constructed for use of
pedestrians." See §§ 346.02(8)(a), 340.01(58) (emphasis added).
Whereas sidewalks are and always must be part of the adjoining
highway, a pedestrian way may be created by designating a path
or road as such. Indeed, the first time the legislature used
the term pedestrian way (other than in § 85.10(21)(g) (1949-
50)), it did so in this manner. In that statute, Wis. Stat.
§ 83.42(6) (1973-74), the legislature authorized county highway
16
No. 2021AP1589
committees (with the approval of the Department of
Transportation's rustic roads board) to "[d]esignate a rustic
road or portion thereof as a pedestrian way or bicycle way or
both." See also 1983 Wis. Act 55 (repealing § 83.42(6) (1981-
82)). This too suggests that pedestrian way refers to something
narrower and more specific than all sidewalks.
¶24 If Sojenhomer's broad reading were nevertheless
correct, then we might expect to find evidence of that expansive
meaning in other statutes referring to pedestrian ways. But in
fact, the phrase "pedestrian way" was all but ignored by the
legislature for decades after it was adopted. Before 1973, the
only place the statutes referenced pedestrian ways was in the
statutes defining that term, § 346.02(8) (1971-72) and its
predecessor, § 85.10(21)(g) (1949-50). And between 1973 (when
the rustic roads statute we just mentioned was adopted) and
2009,11 the legislature used the phrase "pedestrian way" just
11 In 2009, the legislature adopted Wis. Stat. § 84.01(35)
(2009-10), which provided (subject to exceptions identified in
rules promulgated by the Department of Transportation) that the
Department "shall ensure that bikeways and pedestrian ways are
established in all new highway construction and reconstruction
projects funded in whole or in part from state funds or federal
funds." Section 84.01(35) was subsequently amended to require
only that "the department . . . give due consideration to
establishing bikeways and pedestrian ways in all new highway
construction and reconstruction projects funded in whole or in
part from state funds or federal funds." § 84.01(35) (2021-22).
17
No. 2021AP1589
once. That reference, defining "skywalk" as "any elevated
pedestrian way," occurred in an act creating a comprehensive
statutory scheme authorizing first-class cities to establish
pedestrian malls. See 1975 Wis. Act 255, § 2, codified at Wis.
Stat. § 66.610(2)(o) (1975-76) ("'Skywalk' means any elevated
pedestrian way."). Notably, the legislature did not use the
phrase "pedestrian way" elsewhere in that same statutory scheme
even when it would fit. For example, the legislature did not
refer to pedestrian ways when it defined "pedestrian mall" to
mean "any street, land or appurtenant fixture designed primarily
for the movement, safety, convenience and enjoyment of
pedestrians," even though a pedestrian mall would seemingly fall
within Sojenhomer's broad reading of the definition of
pedestrian way. See 1975 Wis. Act 255, § 2, codified at Wis.
Stat. § 66.610(2)(l) (1975-76). The broader statutory history
and context thus suggest that the legislature did not share
Sojenhomer's broad understanding of the definition of pedestrian
way.
This statute sheds little light on whether sidewalks are
pedestrian ways. To be sure, it suggests there is some
connection between pedestrian ways and highways. And highways
can include sidewalks. See Wis. Stat. § 340.01(58). But this
provision does not say whether a pedestrian way can be a part of
a highway, let alone that sidewalks are a type of pedestrian
way. Instead, it simply directs the Department to consider
establishing pedestrian ways in the context of highway
construction and reconstruction projects. See § 84.01(35).
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No. 2021AP1589
C
¶25 Finally, we find it significant that the legislature
chose to omit sidewalks from the limitations on condemnation in
Wis. Stat. §§ 32.015 and 61.34(3)(b). These provisions both
state that condemnation may not be used to acquire property to
establish or extend "a recreational trail; a bicycle way, as
defined in s. 340.01(5s); a bicycle lane, as defined in s.
340.01(5e); or a pedestrian way, as defined in s. 346.02(8)(a)."
See §§ 32.015; 61.34(3)(b). This list is specific and, notably,
identifies both bicycle lanes——which, like sidewalks, are
statutorily defined as part of a highway or roadway, see Wis.
Stat. § 340.01(5e)——and bicycle ways. In other words, by using
both the terms "bicycle way" and "bicycle lane," the legislature
made particularly clear in both §§ 32.015 and 61.34(3)(b) that
establishing or expanding on-road or off-road bicycle access
through condemnation was not permitted. But when it came to
pedestrian access, the legislature used only the terms
"recreational trail" and "pedestrian way," neither of which
expressly include sidewalks or any other part of a highway or
roadway. See Wis. Stat. § 340.01(58).
¶26 Sidewalks are not unusual or unfamiliar. Rather, they
are a ubiquitous feature of road projects across the state. If
the legislature wanted to prohibit the use of condemnation to
build sidewalks anywhere in the state, then they could have done
so clearly. And it would have been easy to do so, either by
specifically referencing sidewalks in §§ 32.015 and 61.34(3)(b),
or by adding them to the definition of pedestrian way in Wis.
19
No. 2021AP1589
Stat. § 346.02(8)(a). But they did not. Instead, they
incorporated a seldom-used phrase, "pedestrian way," which
context and history indicate does not include sidewalks. Given
that, we conclude that the definition of "pedestrian way" in
§ 346.02(8)(a) does not include sidewalks, and accordingly hold
that the limitations on condemnation in §§ 32.015 and
61.34(3)(b) did not prohibit the Village from condemning
Sojenhomer's property to build a sidewalk.
By the Court.—the decision of the court of appeals is
reversed.
20
No. 2021AP1589.akz
¶27 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting).
Wisconsin Statutes provide that a village may not acquire
private property by condemnation to establish a "pedestrian
way."1 The Village of Egg Harbor ("Village") condemned part of
Sojenhomer LLC's ("Sojenhomer") property to establish a
sidewalk. Whether a sidewalk is a "pedestrian way" is the issue
before our court. The trial court said "no." The court of
appeals said "yes." I agree with the court of appeals.
¶28 I agree with the analysis of the court of appeals,
which held that the Village improperly used the power of
condemnation to acquire Sojenhomer's property to build a
sidewalk. 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. In other words, a closer
look at the plain meaning of the statutes reveals that all
sidewalks are pedestrian ways, but that not all pedestrian ways
are sidewalks. As a result, the Village cannot condemn this
1 Wis. Stat. § 32.015; Wis. Stat. § 61.34(3)(b).
1
No. 2021AP1589.akz
property. I would affirm the decision of the court of appeals.
Accordingly, I dissent.
I
¶29 It is undisputed that pursuant to its eminent domain
authority, the Village condemned Sojenhomer's property to build
a sidewalk as part of its plan to reconstruct portions of County
Highway G. Sojenhomer brought suit against the Village, arguing
that the Village violated Wis. Stat. § 32.015's and Wis. Stat.
§ 61.34(3)(b)'s prohibitions against villages using their
condemnation powers for the purposes of establishing or
extending a pedestrian way. Sojenhomer argues that the
statutory definition of a pedestrian way is broad enough to
include a sidewalk. Thus, as Sojenhomer argues, the Village
violated the statute when it condemned and acquired his property
to construct a sidewalk, as a sidewalk is a subset of a
pedestrian way.
¶30 The Village argues that it took Sojenhomer's property
to construct a sidewalk, not a pedestrian way, and so the taking
was justified pursuant to their condemnation powers. In other
words, the Village argues that the two terms have no overlap and
a sidewalk is not a pedestrian way.
¶31 The parties filed cross-motions for summary judgment.
The circuit court denied Sojenhomer's motion for summary
judgment. The circuit court agreed with the Village that
pedestrian ways and sidewalks are two distinct terms and granted
the Village's summary judgment motion. In its accompanying
order, the circuit court concluded that as a matter of law, the
2
No. 2021AP1589.akz
Village did not exceed Wis. Stat. § 32.015's restrictions on its
condemnation authority when the Village condemned Sojenhomer's
property to, among other things, construct a sidewalk. The
circuit court interpreted Wis. Stat. § 346.02(8)(a)'s
"pedestrian way" as separate and distinct from its definition of
a sidewalk, based at least in part on the fact that both terms
appear in the statute, so the Legislature would have intended
the terms to have different and distinct meanings to avoid
surplusage. The circuit court treated pedestrian ways as
separate and distinct from sidewalks.
¶32 Sojenhomer appealed. The court of appeals reversed
the circuit court's grant of summary judgment to the Village.
Agreeing with Sojenhomer, the court of appeals held the general
definition of a pedestrian way in Wis. Stat. § 346.02(8)(a) is
"broad" enough that a pedestrian way "plainly" includes
sidewalks. Sojenhomer LLC v. Village of Egg Harbor, 2023 WI App
20, ¶2, 407 Wis. 2d 587, 990 N.W.2d 267. The court of appeals
continued:
As Sojenhomer correctly observes, the general
definition of pedestrian way in Wis. Stat.
346.02(8)(a) is broader than the definition of a
sidewalk because a pedestrian way can——but need not——
be adjacent to a roadway. In other words, the term
pedestrian way includes both: (1) sidewalks——i.e.,
walks adjacent to a roadway for the use of pedestrian
travel, see Wis. Stat. § 340.01(58); and (2) all other
walks designated for pedestrian travel that are not
adjacent to a roadway, such as a walking path through
a parcel of property.
Id., ¶29.
¶33 The court of appeals determined that interpreting
pedestrian ways in this way would not create surplusage in Wis.
3
No. 2021AP1589.akz
Stat. § 346.02(8)(a). "Because the term pedestrian ways is
broader than the term sidewalks, the inclusion of the term
sidewalks in para. (a) makes the provisions pertaining to
sidewalks in ch. 346 applicable to all pedestrian ways that are
not sidewalks." Sojenhomer, 407 Wis. 2d 587, ¶30. The court of
appeals also determined that interpreting pedestrian ways in
this way would not create surplusage in Wis. Stat.
§ 346.02(8)(b) either. "[B]ecause the term pedestrian way is
broader than the term sidewalk, the term sidewalk in para. (b)
serves the purpose of permitting a pedestrian way that is not a
sidewalk to be treated as if it were a sidewalk for assessment
purposes." Id., ¶31. The court of appeals concluded that
the two terms do not create surplusage in the statutes
because each term has a textual function and neither
term could be omitted without changing the meaning of
those provisions.
. . .
Put differently, if the word "sidewalks" were omitted
from para. (a), then the provisions pertaining to
sidewalks in ch. 346 would not apply to pedestrian
ways that are not sidewalks. Accordingly, the term
"sidewalks" still serves a necessary function even
though the term "pedestrian ways" includes sidewalks.
. . .
Of course, we recognize that there is some
overlap in Wis. Stat. § 346.02(8) by interpreting the
term pedestrian way to include sidewalks, but such
overlap does not create surplusage or render any
language meaningless.
Id., ¶¶3, 30, 32.
¶34 Hence, all sidewalks are a type of the broader defined
pedestrian way. But not all pedestrian ways are sidewalks.
4
No. 2021AP1589.akz
Accordingly, the court of appeals held that for purposes of
interpreting and applying Wis. Stat. § 32.015 and Wis. Stat.
§ 61.34(3)(b), a sidewalk is a pedestrian way, so "the Village
used the power of condemnation to establish a pedestrian way, in
violation of [§ ]32.015 and [§ ]61.34(3)(b)." Id., ¶4.
¶35 The court of appeals also considered the Village's
public safety concerns and concluded neither Wis. Stat. § 32.015nor Wis. Stat. § 61.34(3)(b) "create any exceptions, much less
an exception for safety concerns." Id., ¶46. Thus, the court
of appeals reasoned that when the Village used its powers of
condemnation to acquire Sojenhomer's property to construct a
sidewalk, the Village violated § 32.015's and § 61.34(3)(b)'s
prohibitions against a village acquiring property through its
condemnation authority to establish or extend a pedestrian way.
¶36 Unlike my colleagues, I would affirm the decision of
the court of appeals. Sound statutory construction principles
dictate that a sidewalk is a pedestrian way, but a pedestrian
way need not be limited to a sidewalk. It is the Legislature
5
No. 2021AP1589.akz
that legislates policy choices, not the court.2 So, we must
analyze the plain language of the statutes to find the statute's
plain meaning.
II
¶37 This case requires us to interpret and consider the
term "pedestrian way" in Wis. Stat. § 32.015 (and its corollary
Wis. Stat. § 61.34(3)(b)).3 More specifically, if a "sidewalk"
is a "pedestrian way," then the Village is statutorily forbidden
from seizing Sojenhomer's private property via condemnation in
order to construct a sidewalk. If a "sidewalk" is not a
2 "Judicial deference to the policy choices enacted into law
by the legislature requires that statutory interpretation focus
primarily on the language of the statute." State ex rel. Kalal
v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. "In construing or interpreting a statute the
court is not at liberty to disregard the plain, clear words of
the statute." Id., ¶46 (quoting State v. Pratt, 36 Wis. 2d 312,
317, 153 N.W.2d 18 (1967)). "We assume that the legislature's
intent is expressed in the statutory language." Id., ¶44. We
assume this because "[i]t is the enacted law, not the unenacted
intent, that is binding on the public." Id.; see also Antonin
Scalia, A Matter of Interpretation 17 (1997) ("It is the law
that governs, not the intent of the lawgiver . . . . Men may
intend what they will; but it is only the laws that they enact
which bind us."). "Therefore, the purpose of statutory
interpretation is to determine what the statute means so that it
may be given its full, proper, and intended effect." Kalal, 271
Wis. 2d 633, ¶44.
3 See Wis. Stat. § 32.015 ("Property may not be acquired by
condemnation to establish or extend a recreational trail; a
bicycle way, as defined in s. 340.01(5s); a bicycle lane, as
defined in s. 340.01(5e); or a pedestrian way, as defined in s.
346.02(8)(a)."); Wis. Stat. § 61.34(3)(b) ("The village board
may not use the power of condemnation to acquire property for
the purpose of establishing or extending a recreational trail; a
bicycle way, as defined in s. 340.01(5s); a bicycle lane, as
defined in s. 340.01(5e); or a pedestrian way, as defined in s.
346.02(8)(a).").
6
No. 2021AP1589.akz
pedestrian way, then the Village is within its right to seize
private property to construct or expand an existing roadway.
¶38 "[S]tatutory interpretation begins with the language
of the statute." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110(internal quotation marks omitted). "Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." Id.; Bruno v.
Milwaukee Cnty., 2003 WI 28, ¶8, 260 Wis. 2d 633, 660 N.W.2d 656("We have long recognized that when a court construes . . . [a]
statute, words must be given their common meaning.'").
"[S]tatutory language is interpreted in the context in which it
is used; not in isolation but as part of a whole . . . and
reasonably, to avoid absurd or unreasonable results." Kalal,
271 Wis. 2d 633, ¶46. "Statutory language is read where
possible to give effect to every word, in order to avoid
surplusage." Id.; see also State v. Martin, 162 Wis. 2d 883,
894, 470 N.W.2d 900 (1991); Bruno, 260 Wis. 2d 633, ¶24; Crown
Castle USA, Inc., v. Orion Constr. Grp. LLC, 2012 WI 29, ¶13,
339 Wis. 2d 252, 811 N.W.2d 332. In determining meaning, "the
context and structure of the statute[s] are important, and we
interpret the statute[s] in light of 'surrounding or closely-
related statutes.'" Masri v. LIRC, 2014 WI 81, ¶30, 356
Wis. 2d 405, 850 N.W.2d 298 (quoting Kalal, 271 Wis. 2d 633,
¶46); see also Aero Auto Parts, Inc. v. DOT, 78 Wis. 2d 235,
239, 253 N.W.2d 896 (1977) (citation omitted) ("A statutory
7
No. 2021AP1589.akz
subsection may not be considered in a vacuum, but must be
considered in reference to the statute as a whole and in
reference to statutes dealing with the same general subject
matter.); Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7,
¶11, 400 Wis. 2d 417, 970 N.W.2d 1 ("A statute's context and
structure are critical to a proper plain-meaning analysis.")
¶39 "'If this process of ascertainment yields a plain,
clear statutory meaning, then there is no ambiguity, and the
statute is applied according to this ascertainment of its
meaning.'" Kalal, 271 Wis. 2d 633, ¶46 (quoting Bruno, 260
Wis. 2d 633, ¶20). If the meaning of the statute is plain, we
ordinarily stop the inquiry. Id., ¶45. "Where statutory
language is unambiguous, there is no need to consult extrinsic
sources of interpretation, such as legislative history." Id.,
¶46. "[A] statute is ambiguous if it is capable of being
understood by reasonably well-informed persons in two or more
senses." Id., ¶47. The test is reasonableness: whether, in
examining the language of the statute, "'well-informed persons
should have become confused,' that is, whether the
statutory . . . language reasonably gives rise to different
meanings." Id. (quoting Bruno, 260 Wis. 2d 633, ¶21) (emphases
in original). Thus, conducting a statutory interpretation
analysis "involves the ascertainment of meaning, not a search
for ambiguity." Id.¶40 Canons of statutory construction, like dictionaries,
aid courts in determining the common and approved usage of words
in the statute to ascertain their plain meaning. Swatek v.
8
No. 2021AP1589.akz
Cnty. of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 140 (2012) ("Grammar Canon") ("Words are to be given
the meaning that proper grammar and usage would assign them.");
Scalia & Garner, supra at 56 ("Supremacy of Text Principle")
("Of course, words are given meaning by their context, and
context includes the purpose of the text."); see also Scalia &
Garner, supra at 167 ("The Whole Text Canon") ("Context is a
primary determinant of meaning.").
¶41 Let's take a closer look at the statutory text.
Wisconsin Stat. § 32.015 limits a village's power of
condemnation and states:
Property may not be acquired by condemnation to
establish or extend a recreational trail; a bicycle
way, as defined in s. 340.01(5s); a bicycle lane, as
defined in s. 340.01(5e); or a pedestrian way, as
defined in s. 346.02(8)(a).
(Emphasis added.)
¶42 Wisconsin Stat. § 61.34 echoes the same limitation on
a village's condemnation power and addresses powers of village
boards. This statute contains "express language"4 which limits a
village's condemnation power:
The village board may not use the power of
condemnation to acquire property for the purpose of
establishing or extending a recreational trail; a
bicycle way, as defined in s. 340.01(5s); a bicycle
lane, as defined in s. 340.01(5e); or a pedestrian
way, as defined in s. 346.02(8)(a).
See Wis. Stat. § 61.34(1) ("The powers hereby conferred
4
shall be in addition to all other grants and shall be limited
only by express language.").
9
No. 2021AP1589.akz
§ 61.34(3)(b) (emphasis added).
¶43 The crux of the issue is whether a sidewalk is a
pedestrian way. Both Wis. Stat. § 32.015 and Wis. Stat. § 61.34note that the term "pedestrian way" is defined in Wis. Stat.
§ 346.02(8)(a). We look next to the language of § 346.02(8),
"Applicability to Pedestrian Ways," which provides:
(a) 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.
(b) Public utilities may be installed either
above or below a pedestrian way, and assessments may
be made therefor as if such pedestrian way were a
highway, street, alley, roadway or sidewalk.
(Emphasis added).
¶44 Under a straightforward reading of the plain text of
Wis. Stat. § 346.02(8), sidewalks are a subset of pedestrian
ways. A "pedestrian way" is statutorily defined as a walk
designated for the use of pedestrian travel. Dictionaries from
the time of § 346.08(a)'s adoption5 define a "walk" as:
A place laid out or set apart for walking, or resorted
to by those who walk; a path, avenue, sidewalk, or
promenade for pedestrians.
A place prepared or set apart for walking; a way for
foot-passengers at the side of a street or road, or a
sidewalk; a public promenade.
A place designed for walking; a path specially
arranged or paved for walking; as a graveled walk in a
5 The term "pedestrian way" first appeared in 1949, in Wis.
Stat. § 85.10(21)(g). See 1949 Wis. Act 135, Laws of 1949. It
was later renumbered, but the substance of the law has remained
the same.
10
No. 2021AP1589.akz
garden; sometimes, a sidewalk; an avenue for
promenading, a promenade.
Walk, Funk & Wagnalls New Standard Dictionary of the English
Language (Medallion ed. 1940) 2671; walk, The New Century
Dictionary of the English Language 2168-69 (1952); walk,
Webster's Second New Int'l Dictionary of the English Language
2867 (unabr. 1934). "Designated" means "to mark or point out;
appoint; assign; set apart." Designate, The New Century
Dictionary of the English Language 405 (1952); see also
designate, Funk & Wagnalls New Standard Dictionary of the
English Language 688 (Medallion ed. 1940) ("[t]o mark out or
name for a specific purpose"); designate, Webster's Second New
Int'l Dictionary of the English Language 708 (unabr. 1934)
("[t]o indicate or set apart for a purpose or duty."). Finally,
"pedestrian" means "characterized by or connected with walking;
of or belonging to movement on foot." Pedestrian, Funk &
Wagnalls New Standard Dictionary of the English Language 1821
(Medallion ed. 1940); see also pedestrian, Webster's Second New
Int'l Dictionary of the English Language 1802-03 (unabr. 1934)
("[o]f, or pertaining to, walking"); pedestrian, The New Century
Dictionary of the English Language 1269-70 (1952) ("[g]oing or
performed on foot; walking; pertaining to walking").
¶45 A sidewalk is evidently "a place laid out or set apart
or designed for walking," a "way for foot-passengers at the side
of a street or road," and "a path specially arranged or paved
for walking." This understanding is reflected in the statutory
definition of a sidewalk. "'Sidewalk' means that portion of a
highway between the curb lines, or the lateral lines of a
11
No. 2021AP1589.akz
roadway, and the adjacent property lines, constructed for use of
pedestrians." Wis. Stat. § 340.01(58). Wisconsin Stat.
§ 66.0907(1) ("Sidewalks") further defines a sidewalk by its
location and its purpose. A sidewalk is located "on either or
both sides of the street" and "for the use of persons on foot."
Reiterating a sidewalk's purpose again, § 66.0907(1) states,
"The sidewalk shall be kept clear for the use of persons on
foot." See also sidewalk, Webster's Third New Int'l Dictionary
(unabr. 1993) (defining "sidewalk" as "a walk for foot
passengers usu[ally] at the side of a street or roadway").
¶46 Thus, 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."
¶47 Furthermore, this plain meaning analysis yields the
understanding that all sidewalks are pedestrian ways, but not
all pedestrian ways are sidewalks. 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. It includes walks designated for the use of pedestrian
travel whether or not that pedestrian way is located within a
highway, or whether it is a skywalk,6 or a walking path in a
6Wis. Stat. § 62.71(2)(o) ("'Skywalk'" means any elevated
pedestrian way.").
12
No. 2021AP1589.akz
public park not adjacent to the highway. 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 . . . ." Wis. Stat. § 340.01(58). All sidewalks
then are pedestrian ways. But pedestrian ways, which are not
located within the highway right-of-way, like skyways or walking
paths, are not sidewalks.
¶48 I return to the crux of the issue. A closer look at
the plain meaning of the statutes reveals that all sidewalks are
pedestrian ways, but that not all pedestrian ways are sidewalks.
Because all sidewalks are pedestrian ways, the Village is
statutorily forbidden from seizing Sojenhomer's private property
via condemnation in order to construct a sidewalk.
III
¶49 The majority appears to concede that the statutory
definition of a pedestrian way, "a walk designated for the use
of pedestrian travel," Wis. Stat. § 346.02(8), would include
sidewalks if not for "context."7 The majority skips right over
the plain language of the statutes and their common sense
See majority op., ¶3 ("When read in context, the
7
definition of pedestrian way in § 346.02(8)(a) does not include
sidewalks."); id., ¶15 ("The ordinary meaning of a statute is
dictated by more than the literal meaning of a single phrase,
read in isolation.") The Village also appears to have made this
concession, that the statutorily defined term "pedestrian way"
would normally include sidewalks, requesting this court hold
"the term 'pedestrian way' is not [a] broad term meant to
encompass all walks designated for pedestrian travel . . . ."
Elsewhere, the Village asserts "[s]idewalks[] . . . are designed
solely for the purpose of pedestrian travel."
13
No. 2021AP1589.akz
interpretation. Instead, the majority fixates on invented
context. But the context it invents does not alter the common
sense conclusion that the statutory definitions lead
to: Sidewalks are pedestrian ways. The majority, starting at
the wrong location, unsurprisingly arrives at the wrong
destination.
¶50 The meaning of these statutes is plain and
unambiguous. Sidewalks are pedestrian ways. And, as it should,
our interpretation of these statutes "involves the ascertainment
of meaning, not a search for ambiguity." Bruno, 260
Wis. 2d 633, ¶25. But, citing to Wis. Stat. § 346.02(8)(a), the
majority rejects this plain meaning of the text. In its stead,
the majority inserts its invented contextual meaning.
¶51 Both Wis. Stat. § 32.015 and Wis. Stat. § 61.34(3)(b)
use "pedestrian way" which is defined in Wis. Stat.
§ 346.02(8)(a). Section 346.02(8)(a) broadly defines a
"pedestrian way" as "a walk designated for the use of pedestrian
travel." As the court of appeals rightly pointed out, "This
plain language is both simple and broad"; it simply defines a
pedestrian way, while not "plac[ing] any limitations on where
such 'a walk' for 'pedestrian travel' might be located."
Sojenhomer, 407 Wis. 2d 587, ¶26.
¶52 Where a sidewalk is intended for the use of persons or
pedestrians traveling on foot, a pedestrian way is "a walk
designated for the use of pedestrian travel." Wis. Stat.
§ 346.02(8)(a). While at first blush these definitions might
14
No. 2021AP1589.akz
seem distinct, a thorough examination of the statutes reveals
that these definitions meaningfully coexist statutorily.
¶53 The majority nonetheless adopts the Village's argument
that a sidewalk and a pedestrian way must be two distinct, non-
overlapping or nested terms because sidewalk and pedestrian way
are listed independently, in close proximity, and in separate
subsections of Wis. Stat. § 346.02(8). It rather simply
concludes that because the two terms are listed independently,
then they must be intended to be interpreted differently and can
have no commonality nor overlapping meaning.8 Majority op.,
¶¶18-19.
¶54 While we interpret statutes so as to avoid surplusage,9
when ascertaining statutory meaning, "surplusage is not to be
8 The majority explicitly states it is not relying on the
surplusage canon, as the lower courts did, in interpreting
sidewalks and pedestrian ways to have "separate, non-overlapping
meanings." Majority op., ¶19. However, the majority
nonetheless appears to be implicitly relying on the surplusage
canon. The majority argues that in interpreting Wis. Stat.
§ 346.02(8)(a) and (b), if "sidewalks are pedestrian ways, then
the rules of the road applicable to sidewalks would already
apply to pedestrian ways" which would render language in para.
(a) duplicative and unnecessary. Id. Presumably to avoid this
duplicative result, the majority argues the terms "pedestrian
way" and "sidewalk" must be absolutely distinct from each other.
It is difficult to see how this argument does not reflect at
least an implicit reliance on the surplusage canon. See Kalal,
271 Wis. 2d 633, ¶46 ("Statutory language is read where possible
to give reasonable effect to every word, in order to avoid
surplusage." (quoting another source)); Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 174
(2012) ("Surplusage canon") ("If possible, every word and every
provision is to be given effect. None should be ignored. None
should needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence.").
9 See Kalal, 271 Wis. 2d 633, ¶46; Bruno v. Milwaukee Cnty.,
2003 WI 28, ¶24, 260 Wis. 2d 633, 660 N.W.2d 656.
15
No. 2021AP1589.akz
assumed merely because the legislature has used a broad term."
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶150, 382 Wis. 2d 496,
914 N.W.2d 21 (Ziegler, J., concurring). 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. See id., ¶149 (Ziegler, J., concurring)
(determining that it "may not be possible to avoid complete
overlap" among statutorily-defined terms where "the ordinary
meaning" of one of them "is so broad"). Sometimes the
legislature, as here, "deliberately paints with a very
broad . . . brush." Georgina G. v. Terry M., 184 Wis. 2d 492,
540, 516 N.W.2d 678 (1994) (Bablitch, J., dissenting).
¶55 I acknowledge that Wis. Stat. § 346.02(8) employs both
the term "sidewalk" and the term "pedestrian way" in two
separate sentences, in close proximity. And under some
circumstances, these things might suggest that the terms have
wholly distinct meanings. But a logical answer exists to this
assumption: A sidewalk is always a pedestrian way, but the term
"pedestrian way" is broader than solely being a sidewalk.10
An even closer inspection of the statutes also supports
10
the interpretation I adopt. Consider that Wis. Stat.
§ 346.02(8)(a) provides "[a]ll of the applicable provisions of
[Wis. Stat. ch. 346] pertaining to highways, streets, alleys,
roadways and sidewalks also apply to pedestrian ways." Thus,
under para. (a), provisions pertaining to sidewalks in ch. 346
also apply to all pedestrian ways. Because the term pedestrian
ways is broader than the term sidewalks, the inclusion of the
term sidewalks in para. (a) 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 para. (a), then the provisions pertaining to
16
No. 2021AP1589.akz
¶56 The majority also surmises that the "as if" language
in Wis. Stat. § 346.02(8)(b) supports 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." The majority relies on § 346.02(8)(b), which
states, "Public utilities may be installed either above or below
a pedestrian way, and assessments may be made therefore as if
such pedestrian way that is not a sidewalk were a highway,
street, alley, roadway or sidewalk" (emphasis added). 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. Majority op., ¶18. This is because
"[t]he ordinary meaning of a statute is dictated by more than
the literal meaning of a single phrase, read in isolation."
sidewalks in ch. 346 would not apply to pedestrian ways that are
not sidewalks. Sojenhomer LLC v. Village of Egg Harbor, 2023 WI
App 20, ¶30, 407 Wis. 2d 587, 990 N.W.2d 267. Accordingly,
under this statute, the term "sidewalks" still serves a
necessary function even though the term "pedestrian ways"
includes sidewalks.
Like para. (a), the term sidewalk in para. (b) could not be
omitted without changing the meaning of the statutory language.
So, neither sidewalk nor pedestrian way lose their individuality
under my statutory interpretation analysis. Each maintains its
individual purpose, because while all sidewalks are pedestrian
ways, not all pedestrian ways are sidewalks. The statutory
meaning is plain.
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No. 2021AP1589.akz
Id., ¶15. But then the majority proceeds to do what it decries.
It reads a single phrase——"as if"——in isolation, rather than in
context. It is 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.11
¶57 The majority argues that if sidewalks are pedestrian
ways, then we have to read the additional language "that are not
sidewalks" into Wis. Stat. § 346.02(8)(a) and (b). Majority
op., ¶20. According to the majority, § 346.02(8)(a) and (b)
would then be read to include the underlined language:
(a) All of the applicable provisions of this
chapter pertaining to highways, streets, alleys,
roadways and sidewalks also apply to pedestrian ways
that are not sidewalks. A pedestrian way means a walk
designated for the use of pedestrian travel.
(b) Public utilities may be installed either
above or below a pedestrian way, and assessments may
be made therefor as if such pedestrian way that is not
a sidewalk were a highway, street, alley, roadway or
sidewalk.
Majority op., ¶20. But understanding sidewalks are pedestrian
ways does not "read additional language into § 346.02(8)(a) and
(b)." The plain text defines a pedestrian way as being broader
than solely sidewalks, but all sidewalks are pedestrian ways.
So, by definition, it is understood that a pedestrian way
The
11 majority's framing of the "as if" modifier
"torture[s] ordinary words until they confess to ambiguity." W.
States Ins. Co. v. Wis. Wholesale Tire, Inc., 184 F.3d 699, 702
(7th Cir. 1999). And we know that "[s]tatutory interpretation
involves the ascertainment of meaning, not a search for
ambiguity." Bruno, 260 Wis. 2d 633, ¶25.
18
No. 2021AP1589.akz
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.
¶58 The court of appeals agreed with Sojenhomer's
observation that:
[T]he general definition of pedestrian way in Wis.
Stat. § 346.02(8)(a) is broader than the definition of
a sidewalk because a pedestrian way can——but need
not——be adjacent to a roadway. In other words, the
term pedestrian way includes both: (1) sidewalks——
i.e., walks adjacent to a roadway for the use of
pedestrian travel, see Wis. Stat. § 340.01(58); and
(2) all other walks designated for pedestrian travel
that are not adjacent to a roadway, such as a walking
path through a parcel of property.
Sojenhomer, 407 Wis. 2d 587, ¶29. Thus, interpreting the term
"pedestrian way" to include a "sidewalk" does not require
reading words into the text. In fact, the majority's attack can
be turned around on itself. It could be said the majority's
interpretation reads words into the statute: "A pedestrian way
means a walk designated for the use of pedestrian travel,
excluding sidewalks."
¶59 This interpretation, that sometimes a pedestrian way
is a sidewalk, forecloses the majority's concern that the
legislature "chose to omit sidewalks from the limitations on
condemnation in Wis. Stat. §§ 32.015 and 61.34(3)(b)" even
though the term is "not unusual or unfamiliar." Majority op.,
¶26. First, this concern has no bearing on the question
presented in this case, whether sidewalks are pedestrian ways.
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No. 2021AP1589.akz
Second, the statutory limitations on the use of condemned
property include, among other things, a pedestrian way. Since
these statutes are understood to broadly define pedestrian ways
as including all sidewalks, the legislature necessarily also
expressly limited village boards' condemnation powers to acquire
property to construct a sidewalk when it expressly limited the
village boards' condemnation powers to acquire property to
construct a pedestrian way.12 The fact that the term "sidewalk"
does not appear in the condemnation statutes is
tangential: "sidewalks" are already incorporated by reference
in Wis. Stat. § 32.015 and Wis. Stat. § 61.34(3)(b) through the
term "pedestrian way."
¶60 The majority concludes "that the definition of
'pedestrian way' in [Wis. Stat.] § 346.02(8)(a), and the
limitations on condemnation" in Wis. Stat. § 32.015 and Wis.
Stat. § 61.34(3)(b), "unambiguously exclude sidewalks."
Majority op., ¶15. The majority's conclusion is incorrect.
Section 32.015, and its corollary section 61.34(3)(b), limits
condemnation powers from being used to establish or extend a
pedestrian way, and pedestrian ways include all sidewalks.
Section 32.015 also limits condemnation powers from being used
to establish or extend a bicycle way. A bicycle way is defined
The majority's reliance on statutory history likewise
12
fails at this juncture. Majority op., ¶¶21-23. Even assuming
the majority is correct that the statutory history shows that
sidewalks and pedestrian ways have been defined separately, all
that would prove is that the terms have been defined separately.
It would not prove that sidewalks and pedestrian ways do not
have overlapping meanings such that sidewalks are a type of
pedestrian way.
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No. 2021AP1589.akz
as "any path or sidewalk or portion thereof designated for the
use of bicycles, electric scooters, and electric personal
assistive mobility devices by the governing body of any city,
town, village, or county." Wis. Stat. § 340.01(5s) (emphasis
added). Accordingly, the condemnation statutes limit the
Village's condemnation of Sojenhomer's property to build a
sidewalk under any reading of the statute. Given that
pedestrian ways already include sidewalks, had sidewalks been
listed in the statute it would have been redundant.13
¶61 The majority also claims the term pedestrian way
"refers to something narrower and more specific than all
sidewalks." Majority op., ¶23. The majority makes its
unfounded claim without ever having established or defined what
a pedestrian way is. Had the majority conducted a plain meaning
analysis on the statutory text, it would have concluded that the
opposite is, in fact, true. Pedestrian ways are broadly
13These condemnation statutes together demonstrate that
while a village's powers are often broad——including, among other
things, the power to manage village property, highways, streets,
and the power to act for public health, safety, and welfare——
that power is not limitless. But the majority repeatedly
references the Village's public safety concerns as a basis for
seizing Sojenhomer's property, seemingly justifying the
Village's violation of the statutes limiting their condemnation
power. While Wis. Stat. § 61.34(1) recognizes the broad powers
village boards may have to govern, including power to act on
behalf of public safety, the statute also says these broad
powers are conferred "[e]xcept as otherwise provided by law" and
"[t]he powers . . . shall be limited only by express language."
The statutes, by "express language," § 61.34(1), limit a
village's power to condemn and acquire property. No such
exception for public safety concerns exists in either statute.
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No. 2021AP1589.akz
defined, such that all sidewalks are pedestrian ways, but not
all pedestrian ways are sidewalks.14
¶62 In sum, a pedestrian way is defined as a "walk
designated for the use of pedestrian travel." Wis. Stat.
§ 346.02(8)(a). 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." Wis. Stat. § 340.01(58);
Wis. Stat. § 66.0907(1). 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.
¶63 Conducting a plain meaning analysis on the language of
these varied statutes reveals that this statutory scheme is
unambiguous and there is no surplusage under my interpretation
of the statutes. Simply, Wis. Stat. § 32.015 and Wis. Stat.
§ 61.34(3)(b) limit a village's ability to use its condemnation
powers to acquire property to establish or extend a pedestrian
way. A sidewalk is a pedestrian way. I conclude that these
statutes are internally consistent and comport with common sense
as sidewalks are included within the term "pedestrian ways," but
not all pedestrian ways are sidewalks. Because the statute is
In another place, the majority infers that since the
14
legislature has rarely used the term "pedestrian way" after
first placing it in the statutes, the legislature likely
intended pedestrian way to have a narrow meaning. Majority op.,
¶¶23-24. This too, fails to disprove that pedestrian ways are
not broadly defined so as to include all sidewalks. The
opposite inference can likewise be made: The legislature rarely
used the term after its initial use because the term is broadly
defined.
22
No. 2021AP1589.akz
neither ambiguous nor is there surplusage, we do not need to
consult extrinsic sources to confirm statutory meaning. Thus, a
sidewalk is a pedestrian way for purposes of applying the
limitation of § 32.015, and the Village is precluded from
obtaining this property through condemnation.
¶64 As an aside, the Village was likely not without
recourse. It could potentially obtain property through other
means, including paying the landowner a fair price. What the
Village could not do was use its power of condemnation to
acquire Sojenhomer's property to construct a sidewalk.
IV
¶65 In condemning and acquiring Sojenhomer's property for
the purpose of constructing a sidewalk, the Village violated
Wis. Stat. § 32.015's and Wis. Stat. § 61.34(3)(b)'s express
limitations on its condemnation power.
¶66 For the foregoing reasons, I respectfully dissent.
¶67 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and BRIAN HAGEDORN join this dissent.
23