¶ 36. (dissenting). I agree with the circuit court and the court of appeals: Warehouse II does not recover litigation expenses.
¶ 37. As the majority opinion correctly explains, the primary purpose of the condemnation statute is to achieve just compensation. Litigation expenses are not included in just compensation.1 If litigation expenses are to be awarded, the legislature must expressly so provide.
*106¶ 38 This is a statutory interpretation case. The issue is what Wis. Stat. § 32.28(3)(b) means when it awards a condemnee litigation expenses when the con-demnor "does not have the right to condemn" the property. The majority opinion concludes that "does not have the right to condemn" means the condemnor committed a "jurisdictional" defect in complying with Wis. Stat. § 32.05 rather than a "technical" defect in bringing the condemnation proceedings. I conclude that the phrase means that the condemnor does not have the power to condemn the property even if it fully complied with the steps set forth in § 32.05.
¶ 39. The instant case involves litigation expenses when the condemnee objected to the condemnation on the ground that the condemnor did not attempt to negotiate before the notice of the jurisdictional offer. The objection was valid, the condemnation proceedings were terminated, and the condemnor had to begin condemnation proceedings anew.
¶ 40. The Department of Transportation began a new condemnation proceeding and has successfully condemned Warehouse II's property. The parties currently dispute the amount of the condemnation award. Warehouse II asks the State to pay for litigation expenses Warehouse II incurred to delay the inevitable condemnation. Unfortunately, the majority opinion obliges. Many of the condemnee's litigation expenses incurred in the first proceeding, for which Warehouse II seeks reimbursement, probably allowed Warehouse II to avoid expenses in the second proceeding.
¶ 41. I disagree with the majority opinion that the condemnee is entitled to litigation expenses under Wis. Stat. § 32.28(3)(b) (2003-04) when the condemnation proceedings are terminated for the condemnor's failure to attempt to negotiate, a correctable defect.
*107¶ 42. Wieczorek v. City of Franklin, 82 Wis. 2d 19, 260 N.W.2d 650 (1978), interpreting Wis. Stat. § 32.05(5) (1971), governs this case.2 Wieczorek held that when a jurisdictional offer is defective and the condemnation proceedings are terminated, the condem-nor can bring condemnation proceedings anew. No attorney fees may be awarded to the landowner. Applying Wieczorek, I conclude that Warehouse II is not entitled to litigation expenses under Wis. Stat. § 32.28(3)(b) (2003-04).
¶ 43. The majority opinion fails to overturn the Wieczorek case or successfully distinguish Wieczorek from the present case. Furthermore, the majority opinion fails to distinguish the present statutes from the statutes interpreted in Wieczorek.
¶ 44. In interpreting the current statute, the majority opinion is internally contradictory and contradicts the text of the statute. The majority opinion muddies the law and will foster litigation. I therefore cannot join the majority opinion.
¶ 45. The majority opinion errs in at least five ways.
¶ 46. ERROR 1. The majority opinion errs in attempting to differentiate between jurisdictional de*108fects and technical defects for purposes of condemnation proceedings and for purposes of awarding the condemnee litigation expenses.
¶ 47. According to the majority opinion, if a defect in the condemnation proceedings is jurisdictional (as the majority opinion classifies a failure to negotiate), the condemnation proceeding terminates and the con-demnee is entitled to litigation expenses.
¶ 48. If the defect is technical (as the majority opinion classifies a failure to state the proposed date of occupancy, the defect in Wieczorek), the condemnation proceeding terminates and the condemnee is not entitled to litigation expenses. The majority opinion thus limits Wieczorek to technical defects.3
¶ 49. Whether a jurisdictional defect or technical defect, a defect means that the condemnation proceedings cannot proceed unless the defect is corrected. The only difference between a jurisdictional defect and a technical defect seems to be that a condemnee can receive litigation expenses when a court labels the defect jurisdictional.
¶ 50. There are several problems with the majority opinion's jurisdictional/technical analysis.
A
¶ 51. The majority opinion's use of the words "jurisdiction" and "jurisdictional defect" is obscure.
*109¶ 52. "Jurisdictional defect" has many possible meanings, with different consequences. Is the majority opinion using the words "jurisdictional defect" to mean the court's competence to proceed?4 Or is the majority opinion using the words to mean personal jurisdiction over the parties? Or is the majority opinion using the words to mean something else?
¶ 53. Not only is the majority opinion's meaning of the words "jurisdictional defect" unclear, but it is doubtful that the cases cited by the majority use the words "jurisdictional defect" in the same way that the majority opinion does.
¶ 54. The majority opinion relies on Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, to distinguish between jurisdictional and technical defects. Schaefer is not a condemnation case; it is a legal malpractice action. Schaefer involved a defectively signed summons and complaint. The summons and complaint were essential to commence the malpractice action.5 The question before the circuit court in Schaefer was whether it had jurisdiction over the action when the summons and complaint were defective. The supreme court concluded that the defect deprived the circuit court of jurisdiction.
¶ 55. In the present case the condemnee's action was properly commenced in circuit court by summons and complaint. No one challenges the circuit court's personal jurisdiction over the parties or subject matter *110jurisdiction over the condemnee's suit against the Department of Transportation.
¶ 56. The issue before the circuit court in the instant case was a question of substantive condemnation law, namely, whether the condemnation proceedings must be terminated because the condemnor failed to follow the statutory procedure for condemnation.
¶ 57. The majority opinion tries to make the condemnor's failure to negotiate before sending the jurisdictional offer a major defect.6 Parties can, however, negotiate after a jurisdictional offer is made. An attempt at negotiation was made in the instant case after notice of the jurisdictional offer; negotiations failed. Negotiation apparently also failed in the second condemnation proceeding.
¶ 58. The failure to negotiate means only that the condemnor may correct the error and proceed anew, as it did in the present case. The failure to negotiate is an error that can be rectified; the condemnor gets a "do-over." The condemnor does not lose its right to condemn the property.
¶ 59. The majority opinion dismisses the statutory requirement of a proposed date of occupancy (at issue in Wieczorek).7 Yet the court of appeals has declared that a jurisdictional offer without a proposed date of occupancy is a defective jurisdictional offer and the jurisdictional offer is a jurisdictional requisite to condemnation.8 The condemnor gets a do-over.
¶ 60. I question whether the distinction between jurisdictional and technical errors in Schaefer (and all the cases upon which Schaefer relied) can be extended *111beyond errors in a summons and complaint commencing an action in circuit court to the present case. In any event, nothing in the case law or ch. 32 of the statutes supports this jurisdictional/technical distinction for purposes of condemnation proceedings or for purposes of awarding litigation expenses.
B
¶ 61. Not only does the majority opinion erroneously create a distinction between jurisdictional and technical errors that does not exist in the condemnation and litigation expenses statutes, it also ignores the fact that the only statutory provision that creates a "jurisdictional requisite" is not the provision at issue in the instant case, but rather is precisely the provision that was at issue in Wieczorek. Wisconsin Stat. § 32.05 characterizes only one act required of the condemnor as a "jurisdictional requisite," namely, sending the jurisdictional offer to the owner.
¶ 62. Wisconsin Stat. § 32.05(4) states that "notice [of a jurisdictional offer] is a jurisdictional requisite to a taking by condemnation" (emphasis added). In other words, the condemnor must send a notice of a jurisdictional offer to the owner. Notice of a jurisdictional offer is a jurisdictional requisite for the condemnor to proceed in condemnation, not a jurisdictional requisite for the circuit court to hear a challenge to a condemnation proceeding. Wisconsin Stat. § 32.05(3) requires that the notice of a jurisdictional offer state eight matters, one of which is the proposed date of occupancy.
¶ 63. Wisconsin Stat. § 32.05 sets forth in great detail the procedure to be followed for condemning land for highway construction. The condemnor shall take the following steps:
(1) "Shall" make a relocation order (§ 32.05(1));
*112(2) "Shall" cause an appraisal of the property (§ 32.05(2));
(3) "Shall" attempt to negotiate before making a jurisdictional offer (§ 32.05(2a));
(4) "Shall" send to the owner a jurisdictional offer to purchase setting forth an itemized analysis of the compensation offer. The analysis "shall" state (§ 32.05(3)):
(a) the nature of the project and reference to the relocation order and that the condemnor intends to use property for public purpose (§ 32.05(3)(a));
(b) a description of the property and interest therein to be taken (§ 32.05(3)(b));
(c) the proposed date of occupancy (§ 32.05(3) (c));
(d) the amount of compensation offered (§ 32.05(3)(d));
(e) that the appraisal upon which the offer is based is available for inspection (§ 32.05(3)(e));
(f) that the owner has 20 days to accept or reject the jurisdictional offer (§ 32.05(3)(f));
(g) that the owner has 40 days from the date of completion of service to commence a court action to contest the right of condemnation under § 32.05(5) (§ 32.05(3)(g)); and
(h) that the owner has 2 years from the date of the taking in which to appeal for greater compensation (§ 32.05(3)(h)).
(5) "Shall" give notice of the jurisdictional offer by personal service in manner of service of a circuit court summons or by certified mail (§ 32.05(4)).
¶ 64. If any condemnor's error in following the statutory procedures requires special attention, it is an *113error relating to the notice of the jurisdictional offer. Nevertheless, nothing in the statutes describes the relative importance of these various procedural requirements imposed on the condemnor. Nothing in the statutes distinguishes Wis. Stat. § 32.05(3)(c) relating to the proposed date of occupancy from any of the other listed requirements of a jurisdictional offer or any other obligation imposed on the condemnor, including the attempt to negotiate. Indeed, each requirement set forth in § 32.05(1), (2), (2a), (3), and (4) is mandatory, and as the cases remind us, condemnation statutes applying to the exercise of the condemnation power are to be strictly construed.9
¶ 65. The legislature has explicitly treated all requirements imposed on the condemnor, including the notice of the jurisdictional offer, in the same way: A failure to follow a requirement is a flaw that does not affect the condemnation proceedings unless raised timely. The condemnee must raise any such defect (except the amount of just compensation) within 40 days from the date of personal service of the jurisdictional offer or be forever barred from raising any such objection. See Wis. Stat. § 32.05(5).
¶ 66. The law is clear that a condemnor must attempt to negotiate before making a jurisdictional offer. The law also is clear that if the condemnee does not object to the condemnor's failure to negotiate *114within the 40-day period, the condemnee is barred from ever raising the objection again.10
¶ 67. The majority opinion dismisses the explicit statutory requirement that the jurisdictional offer state the proposed occupancy date as going to "neither the condemnor's power to act nor... providing just compensation to the property owner."11 But the proposed date of occupancy is part of the jurisdictional offer;12 without it, an offer made to the condemnee does not qualify as a jurisdictional offer.13
¶ 68. In light of the explicit characterization in Wis. Stat. § 32.05(4) of the jurisdictional offer as a "jurisdictional requisite," the majority opinion's characterization of a proposed occupancy date as a technical defect is problematic.
¶ 69. Case law has recognized that the crucial issue in any public taking is just compensation and has described the mandatory steps set forth in Wis. Stat. § 32.05 as "collateral procedural matters" to be raised promptly.14 In other words, a violation of any of these provisions (including the negotiation requirement, the failure to send a jurisdictional offer, or any of the other requirements) may, under the statute, invalidate the condemnation proceeding, as long as the condemnee challenges the condemnation within 40 days. As the court explained in Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 631, 124 N.W.2d 631 (1963), the point of judicial review under Wis. Stat. § 32.05(5) is to decide challenges to the condemnation and to resolve *115these collateral procedural matters before the condemnation commission or a court turns to the matter of just compensation.15 Until today, neither the statute nor case law had recognized different remedies for failing to follow the requirements of different paragraphs of Wis. Stat. § 32.05.
¶ 70. Wisconsin Stat. § 32.28(3)(b) awards litigation expenses to the condemnee when the condemnor does not have the right to condemn, not when the condemnor has failed to comply with the statutorily mandated steps and the condemnor may correct its errors.
¶ 71. As a result of the majority opinion, a defect in the jurisdictional offer (such as the omission of the proposed date of occupancy) does not justify the award of litigation expenses but the failure to attempt to negotiate does. How does this result make sense when the statute states that sending the jurisdictional offer to the owner is a "jurisdictional requisite," but does not so label the attempt to negotiate?
¶ 72. The majority opinion rests its jurisdictional/ technical analysis on the precarious precipice of the "primary purpose" of the condemnation statutes, namely fair compensation. Not permitting the award of litigation expenses in the present case does nothing to interfere with that primary purpose.
C
¶ 73. The majority opinion fails to follow the rules set forth in the cases it cites. The case law makes clear that the remedy for the condemnor's failure to follow all the statutorily required steps is that the condemnee may challenge the condemnation proceedings in court and force the condemnor to correct the error.
*116¶ 74. The cases explain that if a statute imposes steps on the condemnor and expressly or impliedly denies the condemnor the power to act unless the particular step is taken and no other remedy is provided for a failure to perform the particular step, the remedy is to challenge the condemnation under Wis. Stat. § 32.05.16
¶ 75. The majority opinion refuses to acknowledge that each paragraph in Wis. Stat. § 32.05 "sets forth the condemnation procedure," and "expressly . . . denies the power of the condemnor to act unless the particular step is taken," and that "no other statutory remedy is provided for a failure to perform the particular step."17 These are the requirements for a procedural step to be "found to be jurisdictional" set forth by the court of appeals in City of Racine v. Bassinger, 163 Wis. 2d 1029, 1036-37, 473 N.W.2d 526 (Ct. App. 1991), the case relied upon by the majority for the rationale that failure to negotiate must be jurisdictional.
¶ 76. The majority opinion cites this principle of law at ¶ 12, but refuses to apply it. Wisconsin Stat. § 32.05 mandates numerous steps that the condemnor must take and denies the condemnor the power to proceed with the condemnation unless the steps are taken. Furthermore, the statute provides no other remedy for a failure to take the particular step except for the condemnee to challenge the condemnation under § 32.05 and require the condemnor to comply with the statutory mandate.
*117¶ 77. The majority opinion is thus internally contradictory.
D
¶ 78. The majority opinion's attempt to differentiate between jurisdictional defects and technical defects fails to follow United States v. 4.18 Acres of Land, 542 F.2d 786, 789 (9th Cir. 1976), which interpreted a federal statute similar to Wis. Stat. § 32.05(5) (1971) (and therefore similar to § 32.28(3)(b) (2003-04)). In Wieczorek, we examined 4.18 Acres of Land and concluded that its reasoning was persuasive.18
¶ 79. In 4.18 Acres of Land, the federal court of appeals dismissed a condemnation proceeding that was premature because of a correctable procedural flaw. The federal court explained that the dismissal did not prevent the federal agency from acquiring the land by eminent domain. Accordingly, the federal court of appeals concluded that the "cannot acquire" language of the federal statute governing the award of attorney fees suggests a case in which the federal agency has moved to condemn property without any authority to do so. The federal court of appeals explained the fallacy of the majority opinion's reasoning in allowing recovery of litigation expenses when the condemnor has authority to condemn the property if it follows the statutory procedure:
Were we to construe [the federal statute] as requiring an award of litigation expenses whenever the initial proceeding was dismissed for whatever reason, the award would often he largely fortuitous, depending upon the effect given by the trial court to errors committed during or prior to trial. Had the district court in this case permitted the government to amend *118the complaint to reflect the correction of the procedural error, rather than dismissing the action, appellants would not be entitled to expenses. Congress could not have intended that the right to recover expenses turn upon such a difference.19
¶ 80. This reasoning for not allowing an award of litigation expenses when the condemnor has committed a correctable procedural flaw is consistent with Wieczorek's holding and with Toombs v. Washburn County, 119 Wis. 2d 346, 349, 350 N.W.2d 720 (Ct. App. 1984), holding that a condemnee has a right to attorney fees only if the condemnee prevails on the merits and the condemnation cannot proceed even if procedural defects are cured.
¶ 81. Other state courts have adopted this reasoning in interpreting their condemnation statutes that award litigation expenses to the condemnee. These cases conclude that the owner is not awarded expenses when a condemnation proceeding is dismissed based on correctable procedural flaws and the court does not rule that the property can never be acquired by condemnation.20
*119¶ 82. The majority opinion provides no reason why only certain condemnees who identify only certain flaws are entitled to litigation expenses. Nothing in Wis. Stat. § 32.05 or § 32.28(3)(b) supports the distinction between jurisdictional and technical defects.
¶ 83. ERROR 2. The majority opinion errs in interpreting the words "the condemnor does not have the right to condemn" in Wis. Stat. § 32.28(3)(b) by failing to examine this provision in the context of § 32.28. See majority op., ¶¶ 21-24. The context and structure of a statute are important in determining its meaning.
¶ 84. The general rule is that condemnees pay their own litigation expenses. Litigation expenses are not included as just compensation for the taking of property by eminent domain. This rule makes sense because sellers of real property generally incur expenses such as broker fees, attorney fees, and appraisal fees for which the buyers do not compensate the sellers. Awarding litigation expenses to a condemnee is a matter of policy to be determined by the legislature.21
¶ 85. Wisconsin Stat. § 32.28 sets forth the four special circumstances in which litigation expenses are to be awarded to the condemnee:
(a) The proceeding is abandoned by the condemnor (§ 32.28(3)(a));
(b) The condemnor does not have the right to condemn the property described in the jurisdictional offer (§ 32.28(3) (b));
*120(c) The judgment is for the plaintiff when the property owner institutes condemnation proceedings (inverse condemnation — § 32.28(3)(c));
(d) The amount the property owner receives exceeds a prescribed amount or percentage of the jurisdictional offer, award by the city, or award by the condemnation commission (§ 32.28(3)(d)-(i)).
¶ 86. These four special circumstances evidence recurring themes. In each of the circumstances a con-demnee incurs extra expenses over the expenses ordinarily incurred by a condemnee in obtaining just compensation.
¶ 87. When the condemnor abandons the condemnation proceeding, the owner retains the property. Because the condemnor has forced the owner to incur litigation expenses and the condemnor did not take the property, the condemnor should reimburse the owner for litigation expenses.
¶ 88. When the condemnor does not have the right to condemn the property, the owner retains the property. Because the condemnor has forced the owner to incur litigation expenses and the condemnor did not take the property, the condemnor should reimburse the owner for litigation expenses.
¶ 89. Thus, the requirement that the court determine that the condemnor "does not have the right to condemn" before awarding litigation expenses, properly interpreted, supports the same legislative policy as awarding litigation expenses when the condemnor abandons the commendation.
¶ 90. If the condemnor can correct the flaws in its condemnation procedure and take the property by eminent domain, the condemnor has not forced the property owner to incur expenses even if it fails to *121follow the proper condemnation procedures. If the owner wants to expend funds to delay the taking instead of litigating the primary issue in eminent domain, namely just compensation, the condemnor should not be forced to reimburse the owner for the owner's expenditures incurred in delaying the inevitable condemnation.
¶ 91. When the owner brings the condemnation suit (i.e., inverse condemnation) and wins, the owner is awarded litigation expenses. In inverse condemnation, the condemnor forces the owner to incur extra expenses in order to be able to receive just compensation for the condemnor's exercise of eminent domain. This situation is unlike the failure to negotiate because, in inverse condemnation cases, condemnees would receive no compensation from the condemnor if they did not bring an inverse condemnation action under § 32.10.
¶ 92. Finally, when the ultimate award exceeds a jurisdictional offer by a certain percentage or amount, an owner is awarded litigation expenses. The legislative history of Wis. Stat. § 32.28 makes clear that these provisions were enacted to induce the condemnor to offer just compensation or reimburse the condemnee for litigation expenses associated with an offer of compensation that is significantly less than just compensation.
¶ 93. Wisconsin Stat. § 32.28 read as a whole evinces the plan to ensure that the owner is compensated for litigation expenses when the condemnor abandons the condemnation proceeding, does not have the power to take the property, should have taken the property hut did not, or has offered an unreasonable sum as just compensation.
*122¶ 94. The majority opinion's interpretation of "does not have the right to condemn" contravenes not only the words of the statute but the context of the statute.
¶ 95. ERROR 3. The majority opinion errs in trying to distinguish Wis. Stat. § 32.28(3)(b) (2003-04), the present statute governing litigation expenses, from § 32.05(5) (1971), the predecessor statute governing litigation expenses. Wieczorek interpreted the predecessor statute as not authorizing litigation expenses when the condemnor may, following correct procedures, take the property.
¶ 96. The predecessor statute provided for awarding litigation expenses when a condemnor "cannot condemn the property." The present statute, Wis. Stat. § 32.28(3)(b) (2003-04), uses the phrase "does not have the right to condemn" the property.22 Wieczorek interpreted the predecessor statute's language "cannot condemn the property" to mean "has no right to condemn."23
*123¶ 97. The statute awarding litigation expenses at issue in Wieczorek, Wis. Stat. § 32.05(5) (1971), stated in relevant part as follows:
32.05(5)... If the final judgment of the court is that the condemnor cannot condemn the property described in the jurisdictional offer, the judgment shall also award the owner such sum as will reimburse the owner for his reasonable costs, disbursements and expenses including reasonable attorney and engineering fees actually incurred because of the action of the condemnor.... (emphasis added).
¶ 98. The present counterpart to this sentence in Wis. Stat. § 32.05(5) (1971) is Wis. Stat. § 32.28(3)(b) (2003-04). It reads in relevant part as follows:
32.28 (3) In lieu of costs under ch. 814, litigation expenses shall be awarded to the condemnee if:
(b) The court determines that the condemnor does not have the right to condemn part or all of the property described in the jurisdictional offer or there is no necessity for this taking .... (emphasis added).
¶ 99. Even a cursory reading of both statutes, let alone a careful reading, evidences that the current statute is essentially the same as the predecessor statute interpreted in Wieczorek. Indeed, the majority opin*124ion even concedes that Wieczorek is a reasonable interpretation of the statute at issue in the present case.24
¶ 100. According to the majority opinion, the statutory change of language in § 32.28(3) (b) (2003-04) from the 1971 version "cannot condemn" to read "right to condemn" changed the substance of the statute. Majority op., ¶¶ 25-27. The majority opinion concludes that the words "right to condemn" in § 32.28(3) (b) (2003-04) must be interpreted in the same way as the words "right to condemn" in § 32.05(5) governing a condemnee's commencement of a lawsuit. Majority op., ¶ 24.
¶ 101. The majority ignores the fact that the language of Wis. Stat. § 32.05(5) (1971) and § 32.05(5) (2003-04) is the same; both speak of the "right to condemn," governing a condemnee's commencement of a lawsuit.
¶ 102. The predecessor statute, Wis. Stat. § 32.05(5) (1971), provided in relevant part as follows (emphasis added):
32.05(5) When an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer for any reason other than that the amount of compensation offered is inadequate, such owner may . .. commence an action in the circuit court of the county wherein the property is located ....
¶ 103. The current statute, Wis. Stat. § 32.05(5) (2003-04), provides in relevant part as follows (emphasis added):
32.05(5) If an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate, the owner may ... commence an action in the circuit court of the county wherein the property is located.
*125¶ 104. Both the predecessor and current statutes describe how an owner who contests the right of the condemnor to condemn the property commences a lawsuit. Accordingly, I conclude that Wis. Stat. § 32.28(3)(b), using the words "has no right to condemn," does not change the allocation of litigation expenses set forth in Wieczorek.
¶ 105. In both Wieczorek and the present case, a judgment for the condemnee was entered in the condemnee's action under Wis. Stat. § 32.05(5) (1971) and (2003-04), respectively, dismissing the condemnation proceeding. The judgments for the condemnee were final regarding the proceeding brought by the con-demnee. In both Wieczorek and the instant case, the condemnor could initiate another condemnation action against the condemnee. In both cases the judgment for the condemnee was not the final judgment in the sense that it did not finally determine that the condemnor did not have the right to condemn the property if all the procedural prerequisites for condemnation were satisfied.25
¶ 106. I conclude that the majority opinion makes much ado about nothing in trying to distinguish the 1971 and 2003-04 statutes governing litigation expenses.
¶ 107. ERROR 4. The majority opinion errs in its view of the legislative history of the amendment creating Wis. Stat. § 32.28(3)(b) (2003-04). See majority op., ¶¶ 25-29. Although the majority opinion characterizes *126Wis. Stat. § 32.28(3)(b) (2003-04) as ambiguous, requiring an examination of the legislative history,26 the legislative history does not support the majority opinion's interpretation of § 32.28(3) (b) (2003-04).
¶ 108. The majority opinion ignores a note to 1977 Assembly Bill 1077 (1978) in the drafting file of ch. 440, Laws of 1977. The note explains that the substance of the final sentence of Wis. Stat. § 32.05(5) (1971) (quoted above) is retained as new § 32.28(3)(b) (2003-04) to allow recovery of reasonable and necessary expenses "when the court determines that the condem-nor lacks power to condemn the property in question, or that the necessity of the taking has not been established." The note goes on to explain that § 32.05 (1971) requires the award of such costs in the same kind of cases as set forth in the new § 32.28(3)(b) (2003-04).27
¶ 109. The majority opinion also ignores the Legislative Council staff briefs and reports, which are part of the legislative history of the current statute. These documents repeatedly indicate that the goal of the Legislative Council Special Committee on Eminent Domain was to change the law to allow litigation expenses when the condemnee receives more money through litigation or appeal than was originally offered. The Special Committee concluded that it was not fair that a condemnee had to pay the expenses of litigation to receive a fair and reasonable amount of compensation 28
*127¶ 110. The Department of Transportation fiscal estimate upon which the majority opinion relies does not attribute the increased costs to Wis. Stat. § 32.28(3)(b) (2003-04), the carryover provision from § 32.05 (1971). As the majority opinion points out, Wis. *128Stat. § 32.28(3) contains nine circumstances in which condemnees are entitled to litigation expenses.29 Eight of these nine circumstances were new, namely, abandonment, inverse condemnation actions, and six types of low-ball jurisdictional offers or compensation awards. Section 32.28(3)(b), awarding litigation expenses when the condemnor does not have the right to condemn, was retained from the predecessor statute.
¶ 111. Low-ball jurisdictional offers are the primary cost increases under the litigation expense shifting provisions that are identified in the fiscal note. The fiscal estimate explains that "[m]ost of [the] cost increase is likely to occur from appealed cases where the condemnee receives an award. . . that exceeds the jurisdictional offer by at least 10%."30
¶ 112. The legislative history of Wis. Stat. § 32.28 is consistent with Wieczorek's holding that a condemnee has a right to attorney fees only if the condemnee prevails on the merits by establishing that the condemnation cannot proceed even after any procedural defects have been cured. The majority opinion errs in its reading of the legislative history.
¶ 113. ERROR 5. The majority opinion errs in concluding that the legislative policy in Wis. Stat. § 32.28(3)(b) is to award a condemnee litigation expenses to encourage the condemnor to follow the con*129demnation statutes. See majority op., ¶ 29.31 Yet the majority opinion contravenes this policy by allowing the condemnor to make "technical" errors without paying litigation expenses.
¶ 114. The majority opinion offers no support for its broad statement of legislative policy in the text of Wis. Stat. § 32.28(3)(b) or the context of the statute, the legislative history, or the case law.
¶ 115. The text of Wis. Stat. § 32.28(3) (b) does not state that if the condemnor fails to follow carefully the condemnation statutes, the condemnee will be awarded litigation expenses.
¶ 116. The legislative history does not support the majority opinion's statement of legislative policy. The Wisconsin Legislative Council Summary of the Proceedings of the Special Committee on Eminent Domain (Sept. 9, 1977) demonstrates the error of the majority opinion's broad view of shifting litigation expenses from the condemnee to the condemnor. In discussing proposed legislation for litigation expenses in eminent domain proceedings, some members of the Legislative Council urged that litigation costs should be recovered at each stage of litigation. "Other members expressed a concern that such a provision would encourage litigation and expressed approval of the bill as drafted."32 Ultimately, the legislature did not allow recovery of litigation expenses at each stage of the litigation.
*130¶ 117. Other Legislative Council materials indicate that the purpose of shifting litigation expenses is to equalize bargaining positions and encourage the condemnor's offers to be close to full value.33 The errors in the present case and in Wieczorek do not involve value. Value is not an issue in a Wis. Stat. § 32.05(5) proceeding.
¶ 118. The cases the majority opinion relies on to support its conclusion that the legislative policy underlying Wis. Stat. § 32.28(3)(b) is to encourage condem-nors to follow carefully the condemnation statutes do not support the majority opinion's thesis.
¶ 119. Redevelopment Authority of Green Bay v. Bee Frank, 120 Wis. 2d 402, 355 N.W.2d 240 (1984), and Standard Theaters, Inc. v. Department of Transportation, 118 Wis. 2d 730, 349 N.W.2d 661 (1984), relied upon by the majority opinion, see majority op., ¶¶ 29-32, explain that the public policy underlying awarding litigation expenses to the condemnee is to discourage the condemnor from making a low-ball offer. These cases do not describe a broad legislative policy supporting shifting litigation expenses generally in condemnation cases whenever the condemnee is successful in a lawsuit.
¶ 120. The majority's reliance on Bee Frank and Standard Theatres is spurious. The present case and Wis. Stat. § 32.28(3)(b) (2003-04), the statutory provision at issue in the present case, do not involve "low-ball offers."
¶ 121. Indeed, the majority opinion fails to recognize that the statute does not even shift litigation expenses for every landowner who successfully challenges a "low-ball offer." Sections 32.28(3)(d)-(i) (2003-04) *131provide for shifting litigation expenses only when the condemnee meets the mathematical requirements set forth in the statutes. Thus, even the statutory provisions that expressly address "low-ball offers" are not designed to make the landowner "whole" in every situation in which the condemnee litigates.
¶ 122. If the majority opinion's explanation of the legislative policy is correct, the majority opinion's distinction between jurisdictional and technical flaws does not fulfill the legislative policy. It does not award litigation expenses for statutory violations it deems "technical," and therefore the condemnor is not encouraged to follow the condemnation statutes.
* * * *
¶ 123. In sum, no reason exists to distinguish between a failure to negotiate in good faith prior to making a jurisdictional offer, as in the present case, and a failure to state a proposed date of occupancy in the jurisdictional offer, as in Wieczorek.
¶ 124. In each of these contexts, the condemning authority need do no more than correct the error. The inevitable result in both situations is condemnation, and Wis. Stat. § 32.28 and the predecessor statute retain the American rule that a plaintiff, here the condemnee, pays its own litigation expenses unless the case falls within one of the specified statutory exceptions.
¶ 125. For the reasons stated, I would hold that Wieczorek governs the case at bar. The circuit court and court of appeals got it right. Accordingly, I dissent.
¶ 126. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Martineau v. State Conservation Comm'n, 54 Wis. 2d 76, 85, 194 N.W.2d 664 (1972).
Wisconsin Stat. §32.05(5) (1971) provided in pertinent part: "If the final judgment of the court is that the condemnor cannot condemn the property... , the judgment shall also award the owner such sum as will in the opinion of the court reimburse the owner for his reasonable costs, disbursements and expenses, including reasonable attorney and engineering fees
The court of appeals in Toombs v. Washburn County, 119 Wis. 2d 346, 350 N.W.2d 720 (Ct. App. 1984), viewed Wieczorek v. City of Franklin, 82 Wis. 2d 19, 260 N.W.2d 650 (1978), as applicable to the current statute.
After concluding that the defect in Wieczorek was technical, the majority proceeds to the second step of its jurisdictional/technical analysis and declares that "the Wiec-zoreks were not prejudiced by the lack of a proposed date of occupancy in the jurisdictional offer." Majority op., ¶ 13. Did the majority review the record, or even the briefs, from Wiec-zorek? Was this issue even litigated? The majority has no way of knowing whether the Wieczoreks were prejudiced.
Starting in 1981, Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 552, 307 N.W.2d 881 (1981), the court has stated numerous times that a circuit court has subject matter jurisdiction, as a matter of state constitutional law, in all matters. Thus, the majority opinion must not be referring to subject matter jurisdiction.
See Wis. Stat. § 801.02(l)-(2) (requiring a summons and complaint to commence a civil action).
Majority op., ¶ 13
Id., ¶¶ 12-13.
Toombs, 119 Wis. 2d at 349.
Aero Auto Parts, Inc. v. DOT, 78 Wis. 2d 235, 241, 253 N.W.2d 896 (1977) (quoting 1 Nichols, Eminent Domain § 3.213[4] (rev. 3d ed. 1976)); Herro v. Natural Resources Bd., 53 Wis. 2d 157, 171, 192 N.W.2d 104 (1972); City of Racine v. Bassinger, 163 Wis. 2d 1029, 1037, 473 N.W.2d 526 (Ct. App. 1991).
Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 647, 652, 124 N.W.2d 631 (1963).
Majority op., ¶ 12
Wis. Stat. § 32.05(3)(c).
Toombs, 119 Wis. 2d at 349.
Arrowhead Farms, 21 Wis. 2d at 651.
Id.
Bassinger, 163 Wis. 2d at 1036-37. In Bassinger the requirements set forth in the regulations or statutes other than § 32.05 were distinguished from the requirements set forth in Wis. Stat. § 32.05. The latter were labeled jurisdictional.
Bassinger, 163 Wis. 2d at 1036-37; majority op., ¶ 12.
Wieczorek, 82 Wis. 2d at 25-26.
United States v. 4.18 Acres of Land, 542 F.2d 786, 789 (9th Cir. 1976); see also United States v. 5,553.80 Acres of Land, 451 F. Supp. 220, 222 (W.D. La. 1978) ("[T]he condemnee can recover costs and appraisal and attorneys fees only if the court determines that the government is not entitled to condemn the property.").
See, e.g., Bd. ofComm'rs v. Wyant, 672 N.E.2d 77 (Ind. Ct. App. 1996) (owner not entitled to attorney fees when condemnation dismissed because of correctable procedural defect); Sorenson v. Lower Niobrara Natural Res. Dist., 340 N.W.2d 164 (Neb. 1983) (owner not entitled to attorney fees when dismissal of condemnation based on procedural flaw); Dep't of Transp. v. Winston Container Co., 263 S.E.2d 838 (N.C. Ct. App. 1980) (dismissal of condemnation proceeding because resolution of department was insufficient did not justify award of fees to *119owner); Town of Wheatland v. Bellis Farms, Inc., 806 P.2d 281, 285 (Wyo. 1991) (owners not entitled to attorney fees when court did not rule that land could never be acquired by condemnation).
Martineau, 54 Wis. 2d at 85.
For an example of no right to condemn the property, see Mitton v. DOT, 184 Wis. 2d 738, 740, 516 N.W.2d 709 (1994), in which the court held that the Department lacked authority to condemn part of a property because the authorizing statute did not permit the Department to condemn land for the Department's stated purpose.
In Wieczorek, 82 Wis. 2d at 24 ("[T]he phrase 'cannot condemn' means 'has no right to condemn'.. . .") we quoted Wisconsin Town House Builders, Inc. v. City of Madison, 37 Wis. 2d 44, 154 N.W.2d 232 (1967), stating:
We think the jurisdictional offer is so defective that it cannot stand and must be declared void. However, it does not follow . . . that the condemnation process is thereby void ab initio including the lay out of the street as a controlled-access street. The relocation order is a determination of necessity and of the purpose of the condemnation and remains unaffected. We think the relocation order, appraisal, and the negotiation are valid steps in the process for the *123purpose of compensating the plaintiff for the property taken. The City of Madison should make a new and proper jurisdictional offer to purchase the plaintiffs land and the condemnation proceeding should continue from that point.
Wieczorek, 82 Wis. 2d at 21 n.2 (quoting Wisconsin Town House Builders, 37 Wis. 2d at 55).
Majority op., ¶ 22.
In interpreting the predecessor statute, Wieczorek interpreted the words "final judgment... that the condemnor cannot condemn the property" in Wis. Stat. § 35.05(5) (1971). Similarly, the words "the condemnor does not have the right to condemn" the property in § 32.28(3) (b) (2003-04) refer to an ultimate conclusion that the condemnor does not have the right to condemn the property at all. The circuit court reached no such decision on the merits in either Wieczorek or the present case.
Majority op., ¶ 20.
Drafting Record for ch. 440, Laws of 1977, re: A.B. 1077 (available at Wis. Legislative Reference Bureau, Madison, Wis.).
See, e.g., Legislative Council Report no. 77-28, at 5 (Dec. 12, 1977):
[T]he Bill awards statutory costs to the successful party in condemnation actions.... The condemnee is the "successful party" whenever the award of the commissioners or verdict of the court exceeds the jurisdictional offer. ...
*127The costs of condemnation actions are often a problem when the condemnation proceedings involve a condemnation commission. When the condemnee appeals the basic award, the condemnation commission's award is often higher than the jurisdictional offer. If the condemnor then appeals, the jury verdict is often less than the condemnation commission's award, although still more than the basic award. Under these facts, the current statutes provide that the condemnee must pay the costs of the appeal by the condemnor to the corut.
This Bill changes this result and requires the condemnor to pay the costs of the condemnee's appeal if either the award of the commissioners or the verdict of the court is more than the jurisdictional offer. The Bill thus assures that the condemnee need not bear the cost of obtaining a fair amount of compensation for property taken.
Legislative Council Staff Brief 77-7, at 3, 4 (June 13, 1977):
Present Wisconsin Statutes do not permit recovery of any costs or expenses where the purchase price is negotiated or where the award of the condemnation commissioners is accepted by the condemnee. The condemnee bears his own expenses even when the circuit court judge or jury find the jurisdictional award too low.
. . . [Mjany landowners may settle out of court for less than full compensation, in the knowledge that the cost of obtaining a fair price may exceed the difference between such price and the condemnor's offer.
The intent of the attorney fee statutes is thus not to encourage litigation, but to equalize the bargaining position of condem-nor and condemnee so that the former's offers and settlements will more nearly reflect full value.
Legislative Council materials are on file with the Wis. Legislative Council and the Wis. Legislative Reference Bureau, Madison, Wis.
Wis. Stat. § 32.28(3)(a)-(i); see majority op., ¶ 27.
Drafting Record for ch. 440, Laws of 1977, re: A.B. 1077, (available at Wis. Legislative Reference Bureau, Madison, Wis.). The fiscal estimate also points to increases in costs due to abandoned condemnation proceedings and challenges to the "condemnor's authority to condemn." Drafting Record for ch. 440, Laws of 1977, re: A.B. 1077 (available at Wis. Legislative Reference Bureau, Madison, Wis.).
1 agree with the majority opinion that the legislative policy choice in the current statute shifting litigation expenses is to force condemnors to make fair jurisdictional offers and avoid unreasonably low-ball offers as defined by Wis. Stat. §§ 32.28(3)(d)-(i) (2003-04). See majority op., ¶¶ 13, 34.
Legislative Council, Summary of Proceedings, Special Committee on Eminent Domain (Sept. 9, 1977), at 6.
Legislative Council Staff Brief 77-7, at 3, 4 (June 13, 1977) (quoted at note 28, supra).