Sojenhomer LLC v. Village of Egg Harbor

2024 WI 25

• Court: Wisconsin Supreme Court
• Decided: June 19, 2024
• Docket: 2021AP001589
• Status: Published

Opinion

2024 WI 25

SUPREME 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 25

NOTICE 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. §§ 32.05

and 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

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

14 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.

15 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).

18 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.

¶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. § 32.015

nor 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.

¶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. § 61.34

note 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.

¶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.

17 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.

19 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.

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.

21 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

§ 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.