*1 Dairyland Greyhound Park, Inc.,
Plaintiff-Appellant,
v. capacity as in his official E. James Doyle, Stephen Wisconsin, of the State of Governor Secretary capacity official as Bablitch, in his E. Department Administration, of the Wisconsin Defendants-Respondents.
Supreme Court 7, 2005. argument September Oral 2003AP421. No. July Decided WI 107 408.) (Also in 719 N.W.2d reported *12 plaintiff-appellant For the there briefs were Stephen Morgan Murphy Desmond, S.C., L. and Madi- argument by Stephen Morgan. son, and oral L. defendants-respondents For the ar- cause was gued by Bellavia, Whelan, Thomas C. FJ Maura John attorneys Greene, Hoornstra, S. Charles D. assistant general, Peggy with whom on the was A. brief Lauten- attorney schlager, general. by Douglas
An amicus curiae brief filed B.L. was Perry Sonosky, Endreson, Chambers, R. William Perry, Washington, Sachse, LLP, D.C., Endreson & Webster, Howard Bichler and St. Croix Law on Office, Chippewa Wisconsin; behalf of St. Croix Indians of Legal Department-Chief Kevin L. Osterbauer and Black- Center, Odanah, bird on of Bad River Band of the behalf Superior Chippewa Indians; Lake Tribe Kris M. Legal Department, and Lac Courte Oreilles Goodwill Hayward, Lac on behalf of Courte Oreilles Band of Lake Jeffrey Superior Chippewa Wisconsin; Indians of A. *13 Milwaukee, and Eric N. Dahlstrom and Roth- Crawford, Hughes, Schoenburg stein, Donatelli, Dahlstrom, & Frye, Tempe, County LLP, AZ, on behalf of Forest Community; Andrew S. and Potawatomi Caulum Cau- Sokaogon S.C., Madison, lum Law on behalf of Office, (Mole Community Chippewa Lake Band of the Lake Indians), Superior Chippewa argu- and there oral was by Douglas ment B.L. Endreson. by Kluess,
An curiae brief was filed Tori L. amicus Conway, Olejniczak Liebmann, Arndt, Jodi L. and & Jerry, Bay, Bay S.C., Green on behalf of the Green Area Chamber of Commerce. by Murphy
An amicus curiae brief was filed Michael Department Justice, and Ho-Chunk Nation Black Rapport Falls, River and Lester J. and Marston Marston, Ukiah, CA,on behalf of the Ho-Chunk Nation. by Langley,
An amicus curiae brief was filed Grant McDonnell, Domina, Patrick J. William Milwau- City County kee, on behalf of the of Milwaukee and the of Milwaukee. by Raymond
An amicus curiae brief was filed P. Bell, Roisin H. and Michael & Taffora, Best Friedrich Metropolitan LLP,Madison, on behalf of the Milwaukee Association of Commerce and Associated General Contractors-Greater Milwaukee.
An amicus curiae brief was filed E. Michael Attorney, McCann, District Milwaukee. Dairyland Grey- BUTLER, JR., 1. LOUIS B. J. ("Dairyland") appeals Park,
hound Inc. from a decision Callaway, County the Honorable Richard J. Dane granting summary judgment Court, Circuit in favor of Doyle defendants, James E. and then- Governor Secretary Marotta, of Administration Marc J. both in (collectively capacities1 their official referred to as "the *14 Governor"), concluding that the 1993 amendment TV, Article 24 of the Section Wisconsin Constitution ("1993 Amendment") did not affect the 1991-92 Tribal gaming Compacts") any compacts ("Original exten- Original Compacts. appeals sions to the The court of appeal certified the to this court to determine the authority Original 11 Governor's to extend the Com- pacts.2
¶ 2. We conclude that the 1993 Amendment to 24 TV, Article Section of the Wisconsin Constitution does Original Compacts.3 the invalidate Because the Original Compacts contemplated extending the Com pacts amending scope gaming the of Indian within Compacts, parties' we conclude further right constitutionally protected by of renewal is Contract Clauses of the Wisconsin and United States Original Constitutions, and that amendments to the Compacts expand scope gaming are likewise constitutionally protected by the Contract Clauses of the Wisconsin and United States Constitutions. Wewith any language contrary Doyle, in draw to the Panzer v. Secretary Department Marc J. was the of the Marotta Subsequently, Administration at time this action was filed. Stephen appointed Secretary E. Bablitch was as the of DOA September caption 2005 and the of this case has been amended change. reflect Park, Dairyland Greyhound Doyle, Inc. v. certification (June 2003). 2, Appeals Wisconsin Court of Prosser, concurrence/dissent, Justice his asserts that we impact conclude that the 1993 Amendment "had no on Indian concurrence/dissent, gaming." Justice Prosser's 277. This is a holding misstatement of this case. conclude that We Original Compacts. 1993 Amendment did not invalidate impact Whether the 1993 Amendment has on Indian Original Compacts, outside the is not before this court. 295, WI N.W.2d 680 N.W.2d that would ability negotiate limit the State's for III Class Original Compacts.4Accordingly, gaming under the can expanded be to the extent that the State and Tribes negotiate games. III additional Class
3,¶ The essence of what is at issue here is whether by walking Wisconsin should break treaties with Tribes away obligations.5 from its contractual Rules of contract interpretation and the Contract Clauses of the United compel States Wisconsin Constitutions us to con- obliga- clude that the State must honor its contractual entirety. tions their therefore affirm We the order of the circuit court. allegations by Dairyland
¶ 4. This case stems from *15 deprives that the 1993 Amendment the Governor of the authority permit to Wisconsin Tribes to continue con- ducting casino-type gaming Dairyland in Wisconsin. as- serts that Article Section 24 of the Wisconsin Consti- IX types gaming illegal, except tution all renders III Class games specifically exempted for certain that are under according the Wisconsin Constitution.6 Therefore, to Dairyland, games specifically III Class that are not
4 See, e.g.,
Doyle,
52,
93, 96,
Panzer v.
2004 WI
271 Wis.
¶¶
295,
2d
ment was not intended Clauses the Wiscon- on the Contract Relying pacts. Constitutions,9 and federal States sin8 United 24,§ art. cl. 1. Various subsections form." Wis. Cons. IV specific gambling legislature IV to authorize Article allow the Id., (2003-04) (authorizing "bingo games oper- cl. 3 activities. charitable, service, fraternal veterans' by religious, or ated are deductible for organizations or those to which contributions id., (authorizing cl. 4 purposes"); income tax federal or state charitable, service, games religious, local operated "raffle organizations those to which contribu- fraternal or veterans' purposes"); for federal or state income tax tions are deductible id., id., betting); cl. (authorizing pari-mutuel cl. 5 on-track (authorizing lottery). state-operated
All to the Wisconsin Constitution and Wisconsin references unless otherwise noted. are the 2003-04 version Statutes only this Roggensack asserts that the issue before Justice as it to the of the 1993 Amendment relates court is effect Original and the Compacts included were concurrence/dissent, Roggensack's 1998-99 extensions. Justice *16 the court This is inaccurate statement of case. This 285. an ¶ the 1993 Amendment on impact been asked to review the of has Original Compacts. amendments to the all extensions of and law, attainder, any law bill ex facto nor post "No contracts, passed ever be ...." obligation the shall impairing Const, I, § 12. Wis. art. treaty, alliance, confedera any enter into "No state shall law, attainder, or law tion; post ex facto pass any ... bill Const, I, § 10. ...." U.S. art. obligation the contracts impairing preemption Supremacy under the Clause of the United Constitution,10 States the Governor asserts that 1993 Amendment does not diminish the State's author- ity gaming Compacts to renew its with the Tribes.11
¶
Panzer,
10The Supremacy Clause of the United States Constitution states, in part, relevant constitution, This and the laws of the United States which shall be pursuance thereof; made in made, and all treaties or which shall be made, authority under States, of the United shall be the supreme land; judges law of the every and the state shall be thereby, any thing
bound the constitution or laws of state to contrary notwithstanding. Const, U.S. art. VI.
11The Governor asserts that the State has contractual rights obligations Original under the Compacts. We do not Governor, construe the Roggensack as Justice asserts, to be arguing on behalf of the Tribal against Nations the Wisconsin Constitution. See Roggensack's Justice concurrence/dissent, 12Because our decision resolves the dispute between the parties, we do not reach presented regarding issues
I of are undisputed purposes facts in Lac du the 1991 decision Following this appeal. In- Lake Superior Chippewa Band Flambeau (W.D. Wisconsin, F. dians v. State of 770 480 Supp. (7th dismissed, Cir. 957 F.2d appeal 1991), 515 Wis. 1992),13 Gaming Regulatory and to the Indian pursuant 2710(d)(3)(c) (1988),14 Stat. USC and Wis. Act, § 25 2710(d)(3)(c) (1988), Act, § Gaming USC Regulatory 25 Indian ("IGRA") Amendment any preemption issues 1993 or federal of the United States may Supremacy raise under the Clause Constitution. 13 1991, Judge Barbara In States District Court United required negotiate with concluded that "the state is Crabb compact over the inclusion a tribal-state plaintiffs and consid activity prize, the elements of chance includes expressly the Wisconsin prohibited and that is not eration Flambeau Band Lake or law." Lac du Constitution state Wisconsin, Supp. F. Chippewa Indians v. State 770 Superior (7th (W.D. dismissed, 1991), appeal F.2d 515 Wis. 1992). Cir. gaming IGRA Congress passed In IGRA. divided unregulated; I National was left
into three classes: Class (NIGC) regulate Gaming was established Indian Commission authorized gaming, II Indian Tribes and states were Class gaming. III USC regulation compact for the of Class gaming all forms of gaming § Class III is defined as lotteries, II gaming, I which include are not Class or Class 2703(8) games. § betting, casino-type on-track pari-mutuel (2001). as well I includes of "minimal value" Class 2703(6), II gaming, § Class forms of Indian while as traditional unregu bingo and certain state-authorized gaming includes 2703(7). games. § lated card enacting IGRA, Congress states a limited role offered follow- gaming. Congress passed IGRA casino-style regulating v. Supreme decision ing the United States Court's California Indians, (1987), where Band 480 U.S. Mission Cabazon *18 14.035,15 § Wisconsin's then-Governor Tommy Thomp- son negotiated gaming compacts with the 11 Tribes Panzer, located the State. 271 2d 295, Wis. 25. By ¶ 1992, June the State had entered into with compacts each of the Tribes. Id. The Original Compacts initially terms, lasted for seven-year with automatic extensions five-year terms, for to the subject of either right to party issue a notice of prior nonrenewal to the expiration Id., term.16 25-26, 32. Original These Compacts ¶¶ adopted United States Supreme Court the prohibitory/regulatory gaming regulations distinction for on Tribal lands: generally prohibit [I]f the intent of a is state law to certain conduct, grant jurisdiction, it falls within Pub.L. 280's of criminal if generally permits issue, subject but state law at the conduct regulation, civil/regulatory to it must be classified as and Pub.L. does not authorize its enforcement on an Indian reservation. ("IGRA 209; Panzer, 295, Id. at 15, Wis. 2d follows the ¶ spirit by making of Cabazon the permissibility of Class III law."). games a function of state Congress passed encourage IGRA an effort to the forma- tion gaming of state and Tribal compacts. IGRA's is purpose serve the Tribal interest "ofpromoting develop- tribal economic ment, self-sufficiency, strong governments" tribal and the states' in regulating gaming interests within their borders. 25 2702(1). §USC § Wisconsin governor may, Stat. 14.035 states: "The on state, any behalf this enter into compact that has been 2710(d) negotiated under 25 USC [IGRA]." This court has subsequently ruled that legislation this unconstitutional beyond Panzer, 295, reasonable doubt. 2d 271 Wis. ¶ 16The State entered compacts following into with Indian tribes: Superior Bad River Band of Chippewa; Lake County Wisconsin; Forest Potawatomi Community Ho- (previously Tribe); Chunk Nation Winnebago the Wisconsin Lac Courte Superior Oreilles Band of Lake Chippewa; Lac du Flambeau Band of Lake Menominee Superior Chippewa; Tribe engage permitted in certain Class III17 the Tribes to blackjack including gaming land, on Tribal casino pull-tab ma- machines, tables, electronic chines. April an voters ratified Wisconsin to limit Constitution the Wisconsin
amendment gaming Amendment Id., 28. The 1993 in Wisconsin. (1) prohibit legis- changed Section 24 Article IY except authorizing gambling in form from lature specific games provided amendment;18 and for in the (2) state-operated narrowly nature of the define the lottery. Panzer, 2d 271 Wis. 1991 EJR 27. See also ¶¶ 29-31. *19 compacts
¶
were subse-
initial 1991-92
9.
quently
a term of
1999,
and
each for
renewed in 1998
compacts
again
years. Id.,
renewed
¶
were
five
32. The
gaming has
Id., ¶
1992, Class III
33. Since
in 2003.
on Tribal land.
to be conducted
continued
began
alleges
Dairyland
rev-
to lose
that it
games
on Tribal land.
III
allowed
to the Class
enue due
Dairyland
against
then-Governor
filed this action
first
Wisconsin;
Wisconsin;
Indians of
Oneida Tribe of
of Indians of
Superior
Sokaogon Chippewa
Chippewa;
Band of Lake
Red Cliff
(Mole
Indians
Chippewa
Croix
Community
Chippewas);
Lake
St.
-
Cop-
Wisconsin; Stockbridge-Munsee Band Mohican Nation.
http://www.doa.
at
Original Compacts are available
ies
the
state.wi.us/pagesubtext_detail.asp?linksubcatid=922&linkcatid=
81&linkid=.
regarding
III
Class
14 for a discussion
Supra, note
gaming under IGRA.
prohibi
broad
through
exceptions
the
list
Clauses
1)
and
tion,
including:
bingo games operated
charitable
2)
by charitable
organizations;
operated
raffle
religious
3)
betting;
pari-mutuel
on-track
religious organizations;
and
Const,
4)
§
art.
lottery. Wis.
state-operated
the
W
claiming
23, 2001,
Scott McCallum on October
that the
Governor was not authorized to extend the
compacts
light of
with the Tribes in
the 1993 Amend-
sought
injunction
Dairyland
preventing
ment.
an
entering
compacts
Governor from
into
future
directing
timely
Governor to serve
notice of
existing compacts.
nonrenewal to the
for
Tribes
County
¶ 11. The Dane
Court,
Circuit
Honorable
originally granted
Albert,
John C.
the Governor's mo-
ruling
indispens-
dismiss,
tion to
that the Tribes were
parties
litigation.
able
and had not been included in the
Dairyland Greyhound Park,
McCallum,
Inc. v.
2002 WI
App
1,
258 Wis. 2d
¶ 13. and the of court accept asked this court 2, certification on June 2003. September accepted On 12, 2003, this court certifica- tion.
¶ 30, 2004, 14. March On court this remanded the appeals case to the court of because the court was
24 judgment equally on whether to affirm divided Dairyland Greyhound Park, Inc. v. court. the circuit Doyle, ¶¶ 267, 270 2d 677 N.W.2d 34, 2-4, Wis. 2004 WI light court's 4, 2004, in of this On November appeals again Panzer, certified the court decision January appeal 11, 2005, we court, and on to this again accepted now affirm. II certification. We summary grant
¶ 15. This court reviews benefiting judgment court's novo, de from the circuit methodology applying as the decision, same but Inc., Co., 2005 WI Linden v. Cascade Stone circuit court. ¶ 5, 606, 283 2d 699 N.W.2d189. 113, Wis. provi- interpretation
¶ 16. The a constitutional interpretation contract, of a and whether sion, the impaired questions law that we are contract has been County Wagner de novo. v. Milwaukee also review ¶ 103, 18, 709, 2d Comm'n, 2003 263 Wis. Election WI (constitutional interpretation); Dieter v. 816 666 N.W.2d Chrysler Corp., ¶ 670, 2d 45, 15, 234 610 WI Wis. 2000 ("We interpretation of a war- 832 review N.W.2d ranty novo.") added); (emphasis de other contract 1, Lorenz, 10, 2d Wis. Everson v. WI (contract interpretation); v.Milwau- N.W.2d298 Pfister Develop. Corp., 243, 261, 2d 216 Wis. kee Economic (1998) (contract impairment). N.W.2d
Ill Legislature granted Wisconsin compacts authority with into enter the Governor *21 pursuant By Wisconsin, the Tribes located to IGRA.19 Original 1992, Wisconsin's Governor entered into the Compacts thereby creating State,20 on behalf of the relationship contractual between the State and all 11 federally-recognized within Tribes and bands located Panzer,; the State 271 borders. Wis. 2d 25. These validly compacts prior change were executed to the parties Wisconsin law under Amendment. dispute Original Compacts do not that the were valid they when were entered into in 1991 and 1992. The parties dispute, however, whether the 1993 Amend- changes agreed Original ment the terms to in the Compacts. The Governor contends that the 1993 impact Original Amendment does terms of the Compacts. Dairyland contrast, asserts that the 1993 precludes renewing Amendment the State from or amending compacts. retrospec-
¶ 18. Whether the 1993 Amendment tively Original any Compacts provi- invalidates questions sions therein, contained raises of constitu- interpretation impairment. tional and contract We begin analysis therefore with an of the 1993 Amend- then ment. We evaluate whether the 1993 Amendment provision.21 Finally, affects renewal we evaluate (creating 1989 Wis. 14.035); Panzer, § Act Wis. Stat. 2d Wis. 20The completed negotia Wisconsin Governor compact pursuant Flambeau, tions to the decision in Lac du 770 F. Supp. at 488. supra, See note 13. Original state, Ten Compacts part: relevant Compact automatically The duration of this shall thereafter be years, party
extended for of five terms unless either serves written party on notice nonrenewal the other than not less one hundred eighty days prior expiration original to the term of this Compact or extension thereof. *22 the contractual impacts Amendment whether the 1993 on of allowed scope that address provisions land.22 Tribal Tribe Indians & Superior Chippewa Lake of
Bad River Band of XXV(B); § of 1991 Forest Gaming Compact of State Wisconsin Community & of of Wisconsin State Wiscon- County Potawatomi Winnebago XXV(B); § of 1992 Wisconsin Gaming Compact sin Compact of 1992 & State of Wisconsin [Ho-Chunk Nation] Tribe Superior Chippewa Band of Lake XXVI(B); § Lac Courte Oreilles Gaming Compact of 1991 of Indians & State Wisconsin Superior Chippewa § Band of Lake XXV(B); Lac du Flambeau Gaming- Compact of 1991 of Indians & State Wisconsin of of & State XXV(B); § of Indians Wisconsin Oneida Tribe XXV(B); § Cliff Bank of Compact of Red Gaming 1991 Wisconsin Gaming Compact & State of Wisconsin Superior Chippewas Lake Community & State of XXV(B); Sokaogon Chippewa § of 1991 §XXV(B); Croix 1991 St. Gaming Compact of Wisconsin Gaming & State of Wisconsin Indians of Wisconsin Chippewa Community XXV(B); Strockbridge-Munsee & § Compact of XXV(B) (emphasis § Gaming of 1991 Compact State Wisconsin added). & State of Menominee Indian Tribe Wisconsin See also ("The XXVI(1)(B) § Compact of duration Gaming Wisconsin gaming shall Compact respect to on-reservation of this with years, automatically extended for terms five thereafter be on the notice of non-renewal party written unless either serves eighty days prior to the party not less than one hundred other A. extension in subsec. specified of the term expiration thereof.") added). (emphasis states, in relevant Original Compacts also Each of the gaming not may any Class III operate part, "The Tribe unless this Compact of this in this section expressly enumerated IV(B); § Forest Compact Bad amended[.]” River Compact IV(B); Community Compact § of Wisconsin County Potawatomi IV(C); § Lac Oreilles Compact Courte Winnebago [Ho-Chunk] IV(B); § Menomi IV(B); Compact § Lac du Flambeau Compact IV(B); IV(B); § Red Cliff Com Compact § Oneida Compact nee IV(B); § Croix St. IV(B); Sokaogon Chippewa Compact § pact IV(B); Stockbridge-Munsee Compact § Chippewa Compact IV(B) added). § (emphasis
A
construing
purpose
¶ 19. The
a constitutional
give
is to
amendment
effect to the intent of the framers
people
adopted
Cole,
who
it.
v.
State
WI
(citations
520,
264 Wis. 2d
¶ form." Wis. may gambling lature authorize Const, 24(1) added). § These words iy (emphasis art III mean, all Class simply, can be construed Wisconsin, games excluding specific games Amendment, made unconsti- in the were enumerated Amend- Amendment. Because the the 1993 tutional Tribal gaming, did not exclude explicitly ment are, uncon- land games arguably, Class III on Tribal stitutional. existing recognized "[t]he Tribe's The Panzer court blackjack must be sustained as slot machines and such ." validity original . . compacts.
on the basis of the Panzer, 2d Panzer court noted that 93. The Wis. negotiated to the federal pursuant Original Compacts were Flambeau, "[a]ny in Lac and that court's order du district compacts create attempt point impair these would at this Id., questions." 99. Neither of constitutional serious the con concurring/dissenting opinions in this case discusses *24 blackjack, slot machines prohibition respect with stitutional they the 1993 Amendment. gaming, and how survive or video 223, 239, concurrence/dissent, ¶¶ See Justice Prosser's concurrence/dissent, If 240-45; Roggensack's 288. ¶ Justice ("the court was indeed correct district premise their was logical of the every respect"), the extension in almost incorrect blackjack, ma slot concurring/dissenting opinions is that III of Class gaming, in addition to other forms chines and video Compare Amendment. survive the 1993 gaming, would not concurrence/dissent, 205. ¶ Justice Prosser's hand, 22. On the other constitutional amend ments that deal with the substantive law of the State are presumed prospective to be in effect unless an there is express contrary. Kayden Industries, indication to the Murphy, 718, Inc. v. 34 Wis. 2d N.W.2d 447 (1967). Because the 1993 Amendment is silent with regard pre-existing to the issue Tribal compacts, retrospective opera the Amendment is not tion.
¶ 23. We conclude that the 1993 Amendment's explicitly Original Compacts failure to address the ambiguity compacts creates an as to whether the fall within the Amendment's reach.24 purpose
¶ 24. As the of construction of an amend- give ment is to effect to the intent the framers the people adopted paramount a it, who rule of constitu- provision tional construction is that the intent of "is by considering ascertained, be not alone words any part by ascertaining of the instrument, but general purpose whole[.]" "[W]hen Id. at part intent of the whole is ascertained, no is to be general [is] purpose so construed that the thwarted, but good is whole to be made conform to reason and (citation omitted). discretion." Id. We therefore next history surrounding passage examine the of the 1993 the Panzer disagree We therefore with holding that "[t]he text clear." Pan absolutely constitution[al amendment] is zer, 2d Panzer to the Any language Wis. contrary hereby withdrawn. *25 of the 1993 analysis In our historical
Amendment. the debates the Amendment, legislative we examine 2d 278 Wis. Schilling, See campaign. ratification 16. ¶ a amend Constitu- In order to the Wisconsin a pass must tion, legislatures proposed two successive the measure putting amendment before constitutional Const, XII, 1.§ art. for ratification. Wis. to the voters the first consideration 26. Prior to legislature's a the Governor convened Amendment, of the legislature. During this session the special created Wis. Stat. session, legislature the special §565.01(6m). the 1993 Act 321. Like 1991 Wis. 565.01(6m)25 "state defines Amendment, § 565.01(6m) § Stat. reads: Wisconsin enterprise, including lottery" an a multi- "The state means jurisdictional lottery participates, in in state which which the ticket, game by participate in player, purchasing a a is entitled any applies: following of chance in which predetermined winning randomly and the 1. The tickets are symbols can be player preprinted or from which it numbers reveals winning immediately a ticket the ticket is determined whether entitling prize prescribed player as in the features and to win a prize procedures game, including opportunity a in an to win for the drawing game. secondary subsequent or a or chance symbols the numbers or selected 2. The ticket is evidence of randomly by or, option, player player's selected a at the prize prescribed player as computer, entitled to a and the becomes including oppor- game, procedures an for the the features and drawing secondary subsequent tunity prize chance or to win symbols player's are game, or numbers or if some or all of the game, player's drawing if ticket is a chance or selected in purchase randomly computer or if the at the time selected drawing. in a chance ticket selected (b) following lottery" not include "The state does games: Any game simulating any following games of a race or based on the results winners are selected which *26 § lottery."26 565.01 Nevertheless, explicitly preserved the Original Compacts. Under statute, the the Tribal gaming compacts entered to prior 1, 1993, into January are not governed the by remaining portions the "(c) statute: This subsection shall not affect the pro- of any visions Indian gaming compact entered into 1993, before January under s. 14.035." Wis. Stat. 565.01(6m)(c). § sporting Any banking game, including blackjack, event. 2. card Craps any baccarat or chemin de fer. 3. 4. Poker. Roulette. 5. or game utilizing Bingo 21, bingo other that involves dice. 6. Keno. 7.
jack, bingolet bingo craps. Any game played or 8. of chance is that on any mechanical, a slot machine or or electromechanical electronic generally played gambling device that is available to be at a casino. Any game commonly 9. or game device that is as a known video gaming commonly chance or a video machine or that is known as or gambling machine, except considered to be a video a video device by department permit authorized by the sale of tickets (a) game par. retailers in following a authorized if under all of the apply: player a. The device does not determine whether prize.
has won a player b. The device does not indicate whether the has by prize verifying player's won a other than that ticket or player's symbols some all player's or of the or numbers on the drawing, ticket verifying have been selected in a chance or player's randomly that ticket has been selected a system computer purchase. central at the time of Any game game 10. paragraph. that similar is listed in this 11. Any game commonly other considered to be a form gambling not, substantially to, game and is or is not similar department authority chapter. has to conduct under this (c) provisions any This subsection shall not affect the gaming compact January 1,1993, Indian entered into before under s. 14.035. 565.01(6m). § Stat. Wis. previously, As § noted both Wis. Stat. 565.01 and Senator original Adelman's draft of 1991 SJR the precursor for the Amendment, were drafted in 1992. statute, Amend- contrast to the explicit state- lottery" any "state without ment defined lack the amendment's regarding impact, ment gaming compacts. on Tribal thereof, pre-existing no notations record, we found review Upon reference to the Tribal why explaining Amendment excluded from the 1993 was compacts proposals. did However, the constitutional amendment in order provision to contain a similar
not need 565.01(6m)(c). § as Wis. Stat. the same result accomplish *27 intended to exempt of the statute was This subsection Panzer, 295, 2d 86 the Wis. Original Compacts. ¶ E. Doyle, Attorney from James Gen- n.34 Letter (citing Kunicki, of the Wisconsin Assem- to eral, Speaker Walter Assembly Medinger, Chairperson and John bly, (on file 29,1992) Affairs with (April Committee on State Archives, D. Society John the Wisconsin Historical 1)). constitu- 6, Box Folder Because Medinger Papers, prospective, to be presumed tional amendments are 732, it have been superflu- 2d at would Kayden, Wis. the exempt Original Compacts for to legislature ous the the same 1993 Amendment to achieve in order the goal.27 rejected an amend recognize legislature that the We ex question the ballot explicitly that have would
ment to Original interpreted This could be empted Compacts. the Original the legislature intended invalidate mean that only However, rejection of amendment this Compacts. outweigh the vast legislature, and does not one act reports, dis majority legislative records and news other clearly opinion, indicate 25-44 of this ¶¶ cussed Original Compacts. Amendment would not affect the the 1993 concurrence/dissent, 219. See Justice Prosser's ¶ 29. Because the 1993 Amendment and Wis. Stat. § passed contemporaneously, 565.01 were we must not interpret contradictory the two enactments "to indicate a legislative County intent." See State ex rel. Teunas v. (1988) Kenosha, 498, 509, 2dWis. 418 N.W.2d833 (citation omitted).28 therefore We conclude that legislature did not intend the 1993 Amendment Original Compacts. invalidate the This is consistent Panzer, with our decision in where this court held that 565.01(6m)(c) § explicitly exempted the fact that Tribal compacts "lottery" prior from the definition of to the passage signaled legislative of the 1993 Amendment approval Original Compacts. Panzer, 271 Wis. 2d 295, legislature
¶ 30. On 30, June considered passed Assembly Joint Resolution This was eventually first consideration of the resolution that IV( Approximately amended Article Section 24. seven later, months 1993 Senate Joint Resolution the second consideration of the constitutional amendment, in- was January passed troduced. On 26,1993, SJR 2 Senate, Assembly February joint and the on 17, 1993. The two (1992 2) resolutions SJR 1 and 1993 SJR were combined into 1991 Enrolled Joint Resolution 27. The voters of
28We also note that to find otherwise would invalidate Wis. 565.01(6m)(c) § Stat. as unconstitutional the because statute directly would Amendment, conflict with the 1993 and there fore be inconsistent with this long-standing court's policy of finding statutes possible. constitutional Chappy whenever v. LIRC, 172, 185, (1987) 136 2dWis. 401 ("[E]very N.W.2d 568 presumption indulged must be to sustain the if at all law possible and, wherever doubt as a legislative exists to constitutionality, enactment's it must be resolved favor of (citation omitted). constitutionality.") April 6, on the enrolled resolution ratified Wisconsin 1993. drafting files for the consti- 31. A review the legislators the in- amendment indicates that
tutional they Original Compacts preserve as to tended that the at the time. These files demonstrate existed proposal joint to on an earlier were based resolutions regard gaming to with amend the constitution during legislative passed same was statute that session. Thompson called a 1991, then-Governor amending
special session to address Wisconsin Thomp- regard gaming. to Governor Constitution with special drafting request session son submitted requesting proposal, be 1, that the resolution 1991AJR legislative proposal29 in- an drafted to mirror earlier gaming and to take into "freeze" the tended to state proposal,30 and Wis. account differences between gambling § 565.01, made most forms Stat. which explicitly illegal, casinos.31 excluded the Tribal but Lynn 1991 Senate Adelman introduced Then-Senator original legislative attempt which was Joint Resolution most 24 to make unconstitutional amend Article Section W intended gambling. proposal Senator Adelman's forms of in 1991. as it existed gaming the state of Wisconsin "freeze" Legislative Henkel, Attorney, Wisconsin R. Senior Staff Jane Lynn (February Council, Adelman Memorandum Senator 1992). but failed passed amendment Senate proposed This 83(c)(3), as amended Assembly to inaction. Joint Rule
in the due Senate Joint Resolution 565.01(6m)(e), on prohibition § Under Wis. Stat. provisions gambling "shall not affect most forms of 1, 1993, January entered into before compact Indian 565.01(6m). § under 14.035." Wis. Stat. s. *29 Drafting Request by Thompson, June, Governor According Legislative analy- to the Reference Bureau's bill, sis constitutional amendment was based legislation incorporated on that earlier Stat. Wis. § Rupert Theobald, 565.01. Dr. H. Note, LRB Drafter's analysis 16, June printed 1992. Because the LRB's aof bill is displayed with and on the bill when it is legislature, analysis introduced in the the LRB's legislative Schilling, indicative of intent. 2dWis. Cole, 216, 25 n.9. See 520, also 264 Wis. 2d 36 n.12. legislative ¶ 33. The records also reveal legislators uniformly Wisconsin's were informed that Original the amendment would not affect the Com- pacts. example, prior Attorney For vote, June 30 Legislative Jane Henkel of the Wisconsin Council, re- sponding request Rep- ato for clarification from State resentative Travis, David concluded the constitutional "prohibit casino-type gambling amendment not would existing compacts under the between the state and Deputy Legis- Indian Henkel, tribes." Jane R. Director, Representative lative Council, Letter to Travis, David (emphasis original). 19, June Similarly, preparation ¶ 34. 30, for the June special Representative session, then-State John Medinger sought then-Attorney clarification from Gen- Doyle regarding, among things, potential eral other proposed effects of the constitutional amendment on existing compacts. Medinger, Repre- John D. State Attorney Doyle, sentative, Letter to General James E. Attorney responded June 1992. The General on 24, 1992, June and stated that because the amendment presumed prospective was be and because the com- pacts provision compacts did not have a that made the upon change proposed ineffective law, state compacts already amendment "would affect which Doyle, Attorney exist." E. James General, Letter to *30 Attorney Medinger, Representative 24, June 1992. The to letters to this effect other wrote similar General e.g., Representative legislators. See, Marlin Letter to February Schneider, 3, 1993. prior vote, to
¶ 30, 1992, June but 35. After the Deputy consideration, Director for the the the second Assembly Caucus informed the Democratic Democratic Assembly "existing that the tribal-state members of the years gaming compacts and will will continue seven change." Rossmiller, affected the Dan Assem- not be bly Deputy Director, Memorandum Democratic Caucus July Assembly Democrats, 7, to 1992. clearly
¶ that the records demonstrate 36. These pass legislators the amendment voted to constitutional Original Compacts understanding that with We thus conclude that survive the amendment. would Legislature did not intend the 1993 the Wisconsin Original Compacts. Amendment invalidate b campaign ¶ to the ratification 37. We next turn passage Amend of the 1993 that surrounded the voters' presumes that, informed, ment. court when This elements of are familiar with the citizens of Wisconsin infor laws, and that the the constitution and with during the ratifica mation used educate voters campaign provides intent. evidence of the voters' tion Zimmerman, 180, ex rel. Ekern v. 187 Wis. State (1925). "[W]here such intention 192-94, 204 N.W. interpretation appears, of the acts the construction accordingly."Id. follow must ratify the 1993 38. citizens voted Wisconsin iy April on to Article Section 24 Amendment leading Public statements and news accounts to the April 6 vote demonstrate that voters were informed Original that the 1993Amendment would not affect the Compacts, polls days prior April released to the 1993, vote indicate that most voters did not want to illegal. make the Tribal casinos majority reported vast of news articles to the impact voters 1993 Amendment would not Original Compacts.32 example, For the Mil reported then-Attorney waukee Sentinel General Doyle did "not believe enactment of the amendment *31 operating would affect Indian casinos of under terms gambling compacts signed the current state-tribal in Amy Gaming Stays 1991 and Rinard, Question 1992." Unanswered, Sent., 29, Milw. Mar. 1993. Then- Thompson lawyers Governor and "other state and law agree[d]." makers Id. printed 40. The Milwaukee Journal also a letter encouraging passage
to the editor two lawmakers explaining worry amendment, the that voters need not reports Some express news did concern about what the would mean for Indian gaming. See Dan amendment Ritsche, Wisconsin, The Legalized Gambling Evolution in LRB- Gaming 00-RB-1, You Can Bet on It: (1999); Seely, 11-12 Ron Is Confuse, Sure to Jour., 4, St. Apr. Wis. Referendum ('What, really, happen [to will Indian casinos] if amendment really knows.") passes? problem nobody ... The (empha Answers Help Light Schultze, Shed on original); sis in Steve Questions, Amendment Jour., 4, ("Q. Milw. Apr. How do I if vote I want to keep going Indian but expand casinos gambling? yes A. a provides guaran Neither a nor no any vote tees."). And, fact, in expressed some concern that the amend See, e.g., ment jeopardize existing compacts. Amy could Question Unanswered, Gaming Stays Rinard, Sent., Milw. Mar. 29, 1993, quoting Miller, Glen then-Chairman the Menomi nee Tribe. affecting existing Tribal the amendment
about " 'yes' [would] the current vote freeze a casinos because put gambling constitutional Wisconsin level of Lynn gambling." expanded new, forms on brake Editor, 'Yes'on Bock, Letter to Vote Adelman & Peter Expansion, Mar. Jour., Limit Milw. Question to similarly concluded and columnists 41. Editors Original would not affect that the 1993 Amendment explained Compacts. The State Journal Wisconsin 'yes' "[a] amend- on constitutional up vote voters Indian to board Wisconsin ment is not vote Gambling Still, Limit Wouldn't Hurt casinos," Tom Mar. Tribes, Jour., 22, 1993. Wisconsin Wis. St. any encouraged voter who wanted Journal also State of Tribal casinos to vote the continuation ensure Editorial, How to Don't Know favor of amendment. Apr. Guidelines, Jour., Wis. St. Vote?Here Are Some similarly were encour- ¶ 42. Eau Claire Voters aged further to "limit vote for the amendment "[t]here expansion gambling" would and stressed that existing impact on casinos because be immediate no negotiated compacts that ensures with state tribes *32 years." open for the next seven remain the casinos will Casinos, Claire beEnd to Eau Editorial, Vote "lbs" Won't added). (emphasis Apr. Telegram, 2,1993 Green Leader Bay informed that the "amendment also voters were Editorial, Vote "íes"... Indian casinos." will not affect Gambling, Bay Gazette, 30, Mar. Green Press Freeze added). (emphasis 1993 by according poll conducted to a addition, just College Survey Center, released Norbert St. polled percent
days April of those vote, before oper- allowed to "Indian tribes be that should believed gambling ate their casinos on reservations." John Survey: Top Worry, Gaming Hunter, Patrick Taxes Split, Cap. poll by Times, Views The 30, Mar. 1993. A University Survey of Wisconsin-Extension Re Laboratory reported findings. search similar Id. ¶ 44. We conclude vast number of news articles, which informed voters that the amendment impact existing gaming, clearly would not Indian demonstrates that the who voters ratified the constitu- tional amendment were informed that the ratification Original of the 1993 Amendment would affect the Gaming Compacts. Tribal Our "construction and inter- pretation" of the 1993 Amendment must follow accord- ingly. Zimmerman, 187 at 194. Wis. subsequent legislative
¶ 45. We also find that ac- tion demonstrates that the 1993 Amendment did not Original Compacts. legislature's invalidate the sub- sequent component actions are a crucial consti- analysis they tutional because are clear evidence of legislature's understanding of that amendment. See Schilling, present ¶¶ 216, 278 Wis. 2d 23. In the immediately following passage case, laws enacted clearly 1993 Amendment relied on the continuation of existing gaming compacts. Indian budget, August ¶ 46. The 1993 enacted on Legislature 1993, was the first action the Wisconsin compacts mentioned Tribal subse- quent passage of the 1993 Amendment. The budget appropriated $330,800 and $329,000 1993-94 "[m]oneys from 1994-95 received the state from regu- Indian tribes as reimbursement for costs of state *33 gaming gaming [the] under Indian of Indian lation compacts 3544(lm)(a) §§ 16, & . . Act 153 .1993 Wis. added). Budget (emphasis Act, relied therefore, The on III authorized from the Class funds Original Compacts. legislature passed 1993
¶ also Wisconsin 47. (debts) gaming contracts void 174, Act which made all explicitly unenforceable, stated that the and but which apply or federal laws to ... state "section does gaming relating on Indian lands." 1993 to the conduct of § Further, Act 1993 Wis- 174, Wis. Wis. Stat. 895.055. requirement for the Act created a Wisconsin consin Department prosecute of the violations Justice compacts. 365, Act Wis. Stat. Tribal 1993 Wis. 165.25(3r). § legislature passed significance,
¶ 48. Of April 21, 1994, which Act enacted on Wisconsin explicitly contract between the State validated federally-recognized entered Indian Tribe that was May prior Stat. 6,1994. 406; Wis. Act Wis. into 992.20(1). year § passed statute, after the This one legisla- "signal[s] Amendment, the 1993 voters ratified original compacts." approval Panzer, 271 Wis. tive 2d sum, the 1993 Amendment's based on interpretations legislative
history earliest Amend- Amendment, we conclude that preclude the Tribes from intended to ment was not Original conducting games pursuant to the III Class Original Compacts Compacts. not in- are Because the agreed Amendment, the terms the 1993 validated Original Compacts in full effect. in the remain
B ¶ 50. We next examine the whether Governor has authority Original Compacts. Dairy- the to renew the games operated land contends that the Class III at the unconstitutional, Tribes' casinos are and therefore the lawfully compacts. State cannot renew the The Gover- nor the asserts that 1993 Amendment force cannot the State to issue a notice of nonrenewal because this would unconstitutionally impair compacts the State's with the 11 Tribes.
¶ 51. the Both Wisconsin the and United States prohibit impairing Constitutions states from their con- obligations.33 I, tractual 12 Article Section of the Wis- "[n]o consin Constitution states: of attainder, bill ex post any impairing obligation law, facto nor law of
33 note We Contracts generally applies Clause Sebastian, party. contracts which State ais Russell v. (1914). U.S. 195 a state is acting, When "not its capacity as a sovereign, but in its proprietary capacity" party as a to a contract, the "is state hound the same rules as which it those applies to Oconto, its citizens." Fulton v. First Volunteer Co. of (1931) (citation 355, 362, omitted). 204 Wis. N.W. Moreover, appears [W]hen the state as a suitor her courts to her enforce rights property, of sovereignty, she of comes shorn her attributes of body politic, capable contracting, suing, holding and as a of subject property, justice right to those of rules her which in sovereign character, prescribed government she has for the of her
people.
(citation omitted).
Id.
See also U.S.
Co.
Trust
New York v.
Jersey,
(1977);
Wisconsin,
New
431 U.S.
25 n.23
v.
Hall
(1880) ("When
5, 11
U.S.
a State descends from the
plane
its
sovereignty,
private
and contracts
persons,
regarded
with
it is
pro
itself,
hac vice
a private person
as
and is bound accord-
(citation omitted).
ingly.")
Similarly,
passed[.]"
I,
be
Article
contracts, shall ever
states,
10 of
United States Constitution
Section
pass
part:
bill of attain
shall.
. .
relevant
"No state
obligation
post
impairing
or law
law,
ex
der,
contracts[.]"
facto
Although
interpretation
Con
our
Constitution need not
of the Wisconsin
tract Clause
parallel
interpretations
Clause
Contract
federal
prior
Constitution, "our
decisions
of the United States
issues]
upon
[regarding
Clause
have relied
Contract
Chappy
Supreme Court."
of the United States
decisions
(1987)
LIRC,
172, 186,
2d
¶ does that the Contract Clause 52. We power place to barrier to a state's not modify an absolute Wisconsin its own contracts. See Professional Lightbourn, 59, ¶ Ass'n, 149, WI 243 Inc. v. 2001 Police Indeed, will 2d N.W.2d 807. "courts 512, Wis. 627 ability an to enter into the the State scrutinize agreement power Id. act in the that limits its to future." omitted). recognize (quotation a state We further Russell, a precluded Court Supreme the United States being retroac- applied amendment from state's constitutional company a tively private to a contract between state Russell, amendment. 233 pre-existed the constitutional the constitutional amend- at 210. Court concluded that U.S. retroactively to which could to contract applied ment not be "deny right of attempt was in an to party the State already doing in the utility lawfully business expansion to a large sums company expended had municipality after v. Membership Corp. Elec. expansion." for the Dixie preparation (5th 1971) 819, (citing 440 F. 2d 822 Cir. City Rouge, Baton Russell, 195; noting application 233 that retroactive U.S. at change game the rules of the attempt an amendment was Contrast, utility). Roggensack's Justice expense of the concurrence/dissent, 305. ¶
cannot contract away its police powers. Stone v. Missis (1879). sippi, 101 U.S. See also City Superior Roemer, (1913). v. 345, 357, 154 Wis. 141 N.W.250 States may similarly adjust their contractual obligations safeguard the public Moreover, welfare.34 a state's power to impair contracts pre-existing is not limited to those contracts that are hostile to public morals, health, or Home safety. Blaisdell, & Loan Bldg. Ass'n v. 290 U.S. (1934). 398, 437 ifYet, a state could change the rules govern-
ing its contractual obligations whenever it fit, saw Contract Clause would offer no protection at all.35 Indeed, as United States Supreme Court has explic- itly recognized: Bldg. Blaisdell, See Home & Loan Ass'n v. 290 U.S. (1934) ("[E]conomic interests of may justify the state exercise of its continuing and protective dominant not power contracts.").
withstanding interference with Roggensack Justice contends ignore that we "choose[] to controlling precedent of the United States Supreme Court." Roggensack's Justice concurrence/dissent, Justice Roggensack asserts that the Contracts Clause has "never been interpreted by the United Supreme States Court to preclude a state legislating from protect the public health or morals[.]" Id., (emphasis in original) ¶' (citing Mississippi, Stone v. *36 (1879)). 101 U.S. 818 She reviews decisions the United Supreme where, States Court concludes, she the court allowed police State's powers to trump the obliga State's contractual id., tions. See 309-320. Roggensack's ¶¶ Justice analysis over states the United States Supreme precedent. Court's United Supreme States Court has not concluded that a State can never right limit its to exercise its police powers. addition, Justice Roggensack asserts that this decision away takes sovereign State's police power regulate to gambling jurisdiction," "within its Roggensack's Justice concurrence/dissent, However, Tribes are not within the jurisdiction: State's States jurisdiction do not have over Tribes
44 any meaning at to retain If Clause is the Contract impose some limits be understood all... it must existing abridge contrac- of a State to upon power otherwise in the exercise its relationships, even tual public power. . . . Even when legitimate police , security of a . . invoked as an excuse. welfare is without moderation mortgage cannot be cut down spirit oppression." or in a reason Wisconsin, 2d v. U-Haul Co. 101 Wis. Wipperfurth of W. (1981) Allied Struc (citing 586, 594-95, 304 N.W.2d (1978) v. 234, 242-43 Spannaus, tural Steel Co. 438 U.S. omitted) (citations An historical (emphasis original)). courts' further explains of the Contract Clause analysis against the state's police powers to balance attempts to contract: the freedom developed Supreme] States Court
[T]he [United contracts, there were regard public theory that with not sovereignty that could of state certain attributes Court, could, it away. . . . The when contracted be for providing underlying contract as construed the ... If the state sovereign power. giving up then the away powers, certain in fact contract did state attributes hold that certain Court would away at all. This contracted could not be power important an Sovereign limitation became Power modern Public The more gloss on the Contract Clause. later, Test, largely sup- developed Purpose Balancing of some exception, but it is still the need this plants importance. by Congress. jurisdiction granted such specifically unless (2005 12.02[5], § Indian Law Federal Cohen's Handbook of ed.). have no laws Moreover, compact, a valid state without land, have and states gaming on Tribal regulatory power over Roche, Band v. Sycuan See authority Tribal casinos. police no Tribe, (9th F.3d 1994); Florida v. Seminole Cir. 54 F.3d 1999). (11th Cir. *37 (2005) McGoldrick, Jr., States, James M. Limits on 17 added). (emphasis Attempting
¶ 54. to strike a balance between the obligations public states' contractual and the welfare, Supreme the United States Court has established three-step methodology analyzing impairment used Lightbourn, ¶ of contract claims. 512, 243 Wis. 2d (citation omitted). balancing This test is rooted "the protect rights Framers' intent contract from the 'fluctuating policy' supra, of the state." McGoldrick, generally three-step 31.36This court follows this meth- odology evaluating impairment of contract claims. Lightbourn, 512, 243 Wis. 2d
¶ 55. To demonstrate that a contract has been
unconstitutionally impaired,
complaining party
must
beyond
first establish
a reasonable doubt
legislature changed the law after the formation of the
operation
contract and that
of the contract
is
substantially impaired by
change.
Energy
this
See
Re
Group,
Light
serves
Inc. v.
Co.,
Kansas Power &
(1983) (citation omitted);
400,
U.S.
Reserve
Ins.
Life
Follette,
Co. v. La
637, 644,
Wis. 2d
36Contrast Roggensack's concurrence/dissent, Justice (asserting 318-19 analysis ¶¶ the Contract Clause not applicable "legislating protect the public health or morals"). *38 substantially impairs an if a
¶ Second, law 56. relationship, already existing state, in the contractual legitimate significant justification, and have must Span legislation. public purpose also Id. See for the Lightbourn, 512, 2d 243 Wis. naus, 244; at 438 U.S. ¶ 148. public legitimate Finally, significant
¶ and if a 57. question legislation, purpose the becomes exists for the impairment legislature's of contract the whether Light purpose. necessary that and to serve reasonable assessing ¶ In the reason bourn, 512, 149. 243 Wis. 2d amendment, the United of a constitutional ableness Supreme the social whether Court evaluates States changes prompted were foreseeable the concerns compact, whether entered into the when the state sufficiently changed the state since conditions have the New Yorkv. Trust Co. contract. See U.S. entered the (1977). Jersey, 1, 31-32 431 U.S. New present of Wisconsin ¶ case, In State 58. relationship ongoing have had an and the Tribes Compacts Original parties entered into since the recognized ago.37 court As this more than a decade clearly parties in the a reliance interest Panzer, have IGRA, compacts to entered into parties Pursuant balance the interests relationships in an effort to form and the more self-sufficient to become Indian Tribes' desires See, games. e.g., III Bad regulate Class desires State's Gaming Compact of Wisconsin River/State § XXXI.A.1-2. development economic promoting
The Tribes' interests have become The Tribes' casinos self-sufficiency continue. develop- or federal economic what no state "a means to achieve Original Compacts, continuation and this court already recognized "[a]ny attempt point has at this impair compacts these would create serious consti- questions." Panzer, tutional 271 Wis. 2d following analysis, we examine applies whether the 1993 Amendment to renewals of Original Compacts. We then examine whether the precludes interpreting Contract Clause the 1993 public policy against Amendment as a statement of right that forces the State to exercise its Finally, nonrenewal. examine we whether the Amend- *39 applies scope games negotiated ment to the III Class Original Compacts. under the terms of the
1 ¶ 60. Because we have concluded that the 1993 Original Compacts, Amendment not does invalidate the applies whether the 1993 Amendment to renewals of Original Compacts depends upon whether the "re- newal" constitutes new contract or a continuation of pre-existing relationship. contractual This is be- general, in cause, in laws existence at the time of incorporated the contract are into that contract: program ment has been people able to achieve for Indian in 200 years self-respect return of and economic self-sufficiency." —the Zelio, Judy The Fat Buffalo, Legislatures, New State 38-41 (June 1994) Jones, (quoting JoAnn Tribal Chair of the Wiscon- (renamed Winnebago sin the Ho in Tribe Chunk Nation No- 1994)). vember regulating
The State's interest in III gaming Class likewise persists. continually The State has relied on receipts from See, budgeting Indian process. e.g., its 1993 Wis. Act 16, 2003 Wis. Act 33. place at the time which subsist laws
[T]he it, part and form a enter into making of a contract... incorporated to or referred they expressly if were as those which embraces alike principle This its terms. construction, discharge, and enforce- validity, affect its ment. n.30 71 U.S. Quincy, v. City
See Von
Hoffman
(1866).
will not interfere
to a law
changes
Subsequent
2d at
108 Wis.
Life,
contract. Reserve
existing
an
with
entered
however, contracts
law changes,
When a
645-47.
subject
are
to the
law
change
after the date of
into
(1843).
Kinzie,
42 U.S.
v.
new law. Bronson
renewal provi-
of a contractual
analysis
Our
intent of the parties
upon
focuses primarily
sion
Life,
Reserve
the contract.38
entered into
they
when
contracts); Mey-
insurance
2d at 645 (interpreting
Wis.
(1948)
2d 512
Wells,
352, 357, 31 N.W.
252 Wis.
ers v.
provision con
of the renewal
interpretation
our
Because
intent,
upon
parties'
Original Compacts depends
tained in the
Follette,
637, 645,
2d
323 N.W.
108Wis.
Ins. Co.v.La
ReserveLife
(Ct.
1982),
one of constitutional
analysis
is not
App.
2d
examination of
require
an
and therefore does
interpretation
surrounding
passage of
the voters'
campaign
the ratification
*40
Zimmerman,
v.
ex rel. Ekern
Compare State
1993 Amendment.
(1925).
180, 192-94, 204
N.W.
187 Wis.
surrounding the
history
note that
the
nonetheless
We
the 1993 Amend-
ratification of
and voter
legislative enactment
to leave the
that, although the intent was
ment demonstrates
considerably more
untouched,
there was
Original Compacts
Amendment to
the 1993
regarding
application of
the
confusion
reports
of the news
general
The
consensus
process.
the renewal
may affect renewal
Amendment
was that the 1993
to voters
Original
determining that the
Original Compacts. Upon
opined about
affected,
reporters
be
news
Compacts would not
renewal of
Amendment on
of the 1993
impact
the potential
(interpreting employment contracts);
Keske,
v.
Seefeldt
(1961) (interpret-
438, 442,
Wis. 2d
2d
N.W.
ing
agreements).
parties'
lease
The
intent can
deter-
be
through
language
mined
of the contract itself. See
Corp.
Brewing
Swan
Co.,
Sales
v. Jos. Schütz
126 Wis.
(Ct. App., 1985);
2d
25,
¶ 62. case, each of the Compacts provision contains a that addresses Tribal ordinances and State law: "To the extent that State law or ordinances, Tribal thereto, amendments any provision Compact, are inconsistent with of this Compact this shall control."39 plain Original ¶ 63. Under the terms of the Com- pacts, changes impact therefore, in State law do not compacts. parties clearly preserve intended to prevent appli- law as it in 1991-92, existed and to changes cation of to the State's or Tribes' laws to the Original Compacts.
compacts. example, For a Milwaukee Journal reporter con- cluded although any that closing "threat Wisconsin Indian casinos if the passes amendment years," won't hit for six more potential there was the that "when the compacts up come renewal in 1998 and 1999 that the amendment could be used Answers Help Shed shut Schultze, down the tribal casinos." Light, supra, at n.7.
The Wisconsin similarly State Journal passage noted that of the Amendment would not affect the compacts for at least six years, but tribal members feared the State would not Gaming is Sure to Seely, renew the compacts. Referendum Confuse, supra. The Milwaukee Sentinel also cautioned "ratification of the amendment... could be used to up back state's case governor renew," should the next decide not Question Unanswered, Gaming Stays supra, Rinard, 39 See, e.g., County Forest Compact § Potawatomi XXVI. *41 compacts con- if of the addition, renewals Original Compacts, the because of the extensions stitute Original apply Com- to the not Amendment does 1993 apply to extensions pacts, Amendment would a contract found that renewal have Courts same. explicitly provides language for which that contains require an not, therefore, renewal, and does automatic party renew, consti- in order to either act affirmative pre-existing rela- contractual of the a continuation tutes tionship continue. Swan decision" to not a "fresh Kealey Pharm. v. Sales, 2d at 26. Contrast 126 Wis. (W.D. 1982), Supp. Walgreen Wis. Co., F. (7th part, part F.2d and vacated affirmed 1985) pre-existing (concluding aof the renewal Cir. contract contract because a new contract constituted renewal). begin provisions Thus, we no contained Compacts Original language to determine of the with the renewal intended and the Tribes the State whether compact expiration constitute term to of the at the compact, pre-existing whether of the continuation agreement they a new constitute a renewal intended that parties. between clearly parties' evinced The intent Compacts. Original language The
through of the compact Original Compacts is "automati- state that right party cally its exercises either extended" unless compacts language plain The nonrenewal.40 compacts parties intended that the demonstrates "ex- of the word use unless terminated. continue XXV(B); County Pota- § Forest Compact River Band Bad Compact §XXV(B); Winnebago [Ho-Chunk] Compact watomi XXV(B); Flam- § Lac du XXVI; Compact Oreilles § Lac Courte *42 signifies existing tended" a continuation of the contract pertinent rather than the creation of a one; new dictionary "[c]ontinued definition of "extended" is for a long period Heritage Dictionary of time." The American (3d 1992). English Language ed. Renewal automatically, only occurs an affirmative act one parties terminates the continuation of the com- pacts. Original Compacts Sales, Like Swan auto- matically subsequent renew; renewals are not "fresh parties decisions" to conduct business, but merely pre-existing relationships. continuation of See Sales, Swan Wis. 2d at ¶ 66. We therefore conclude that "renewals" con- Original Compacts stitute continuations of the and do independent new, constitute contracts. Because the apply Original 1993 Amendment did not to the Com- pacts, apply the Amendment does not to continuations Original Compacts. extensions already 67. We have concluded that the Original Compacts, Amendment does not invalidate the extensions, or continuations thereof. Therefore, agreed upon Original Compacts, terms in the and the laws effect at the time the contract was into, entered operating control the Tribal casinos under the author- ity Original Compacts.41 Dairyland Nevertheless, asserts that the 1993 Amendment forces the State to beau Band Compact XXV(B); § Menominee Compact §XXVI(1)(B); Oneida Compact XXV(B); Red Compact Cliff §XXV(B); Sokaogon Chippewa §XXVB; Compact St. Croix Chippewa Compact §XXV(B); Stockbridge-Munsee Compact XXV(B). § 41See Von City v. Quincy, 71 U.S. Hoffman
(1866). affirmatively right of nonrenewal. Accord- exercise its ing Dairyland, makes because the 1993 Amendment games currently operated III at the Tribal the Class if Amendment unconstitutional, even the 1993 casinos apply Original Compacts, the State does not operate a contract cannot continue to under and, therefore, the State violation of the constitution Dairyland right of con- must nonrenewal. exercise its impair requiring nonrenewal does not tends that provision compacts compact each contains because compact. party either to terminate each We that allows *43 forcing the to take the therefore examine whether State right step and exercise its of nonrenewal affirmative impairment of the an unconstitutional constitutes Original Compacts. Original
¶ above, each the 68. As discussed of provision party Compacts allows either includes a that give that a written notice of nonrenewal would upon require gaming III the Tribe to cease all Class the expiration compact.42 Upon party's date exer- right compacts cising nonrenewal, the instruct the negotiations parties the to enter into for successor compacts.43 compact a new A constitutes successor compact.
42 example, Gaming Compact in the of 1992 between For County Community of Wisconsin and the Potawatomi Forest State, in the of written provides the section XXV that event section, this by either "as set in party notice of nonrenewal forth Compact this gaming all Class III under Tribe shall cease in upon procedures the date the upon expiration its date any, if in and a compact, subsec. E. are concluded successor added). parties E. (emphasis effect." Subsection allows if one of the negotiations compact enter successor into parties gives written notice of nonrenewal. 43Id.
53 that the 1993 Amendment Assuming pre- those III games cludes Class explicitly prohibited by iy any Art. sec. compact negotiated 1993,45 after III no Class casino can game subject be proper any compact new save the few negotiation,46 specifically III games: Class exempted bingo operated by section, "Except provided as legislature may this Const, iy § gambling authorize form." 24. In Wis. art. addition, specifically clause 6 defines state-operated lottery casino-style games, including blackjack, to exclude rou poker, lette, craps, keno, machines, slot gaming. video may note that the 1993 impact We Amendment successor compacts other new compacts between the State and the Tribes.
However,under prohibitory/regulatoiy analysis from Lac Flambeau, may negotiate du the State be required nonetheless Flambeau, games. over all Class III Lac du F. Supp 487-88. Although this Panzer question court in called into Lac du prohibitory/regulatory distinction, Flambeau the court did not explicitly Panzer, conclude Lac du Flambeau was in error. Furthermore, 2d 92 n.36. Wis. the Seventh Circuit recently affirmed the Lac du Flambeau rationale and reasoned signals lottery Wisconsin's public policy State's broader tolerating gaming. Superior Lac Courte Oreilles Band Lake States, Chippewa Indians v. Wisconsin United F.3d *44 (7th 2004). 664 Connecticut, Cir. also Pequot See Mashantucket Tribe v. (2nd 1990) 1024, 1031 913 (concluding F.2d Cir. games casino-style totally repugnant were not to the state's public policy, only because Connecticut law allowed charities Vegas Nights," to conduct "Las permitted but also forms of other gambling, including state-operated lottery). a Because reso lution the prohibitory/regulatory of distinction a matter of is law, federal we further decline to address issue. 46 ("[T]he Hoffman, See Von 71 U.S. 550 laws which making subsist at the time and place of contract... enter it"); Kinzie, part into form a and Bronson v. U.S. (1843) (concluding that contracts entered into date after the of a law). change subject in law are to the new games religious organizations,47 raffle and charitable religious organizations,48 operated and charitable state-operated betting,49 pari-mutuel and the on-track forcing lottery.50 the State to exercise its result, As a forcing nego- right thereby nonrenewal, the State to authority compacts, remove the State's new would tiate games, except negotiate III the limited Class to games specifically Constitution. authorized games operation III on Tribal The of Class compact nego- in the land a material consideration was tiations: acknowledge compromises the mutual parties Tribe autho- respect types games
with during Compact the term this operate rized Compact duration of this were respect to the with agree- reaching material considerations significant Compact.51 of this ment are essence requiring parties thereby Forcing nonrenewal, compacts negotiate most forms under which for new non-negotiable, therefore would Class III are expecta- disruption of contractual "severe constitute Compare Wipperfurth, at 598. 101 Wis. 2d tions." See Const, 24,§ art. cl. 3. Wis. IY 48 Id., cl. 4. 49 Id., cl. 5.
50 Id., cl. 6. included provision explicitly was This or a similar Original Compacts. Compact Bad River of the eleven seven XXXI(A)(2); § Me XXXI(A)(2); Compact § Lac Courte Oreilles XXXII(A)(2); Compact Cliff § Red Compact nominee XXXI(A)(2); § St. XXXI(A)(2); Sokaogon Chippewa Compact § §XXXI(A)(2); Stockbridge-Munsee Chippewa Compact Croix XXXI(A)(2). § Compact *45 Justice concurrence/dissent, Prosser's 262. The compacts substantially impaired would be because forcing put parties position nonrenewal would in a they longer games where could no contract part Original Compacts were of the because of the Forcing negotiate Amendment. the State to com new pacts severely impair, would thus eliminate, indeed rights the State's contractual to continue III Class excluded the Amendment. See State rel. ex Moran, Cannon v. Wis. 2d 558, 331 N.W.2d 369(1983) 234). (citing Spannaus, 438 U.S. Because applying Original the 1993 Amendment Com pacts guaranteed interferes "with freedom of contract duty Amendment," the Fourteenth we have inquire Creamery further. Fairmont Co. v. State of (1927). Minn., 274 U.S. Supreme
¶ 71. The United States
Court has con-
impairment
cluded that
the severe
of a contract
is
heightened scrutiny. Spannaus,
entitled to
438 U.S. at
("The severity
impairment
measures the
clear.").
height
legislation
of the hurdle the state
must
party
Furthermore, because the State is a
question,
gives
contract
this court
less deference to
legislature's
"assessment of
and
reasonableness
necessity.
.. because the State's self-interest
at
Energy
Group,
stake."
Reserves
¶ of contracts 72. Under prohibited passing law from that is not the State obligation substantially existing impairs an contractual justified signifi- impairment long under a is as as legitimate public purpose, and the constitu- cant appropriate to reasonable and amendment tional Lightbourn, purpose. 512, 2d 243 Wis. that advance Cannon, 559; Trust, 431 ¶ 2d at U.S. U.S. 148; Wis. any legitimate 25-26. We therefore examine whether at justify impairing public purpose con- State's would Original obligation under the to the Tribes tractual Compacts, impairment reason- and whether would be able.
¶
State's interests are less
73. We note
sovereigns
compelling
inquiry
Tribal
involves
when
policies
extend to Tribal
laws and
do not
because state
by Congress. Cohen's Hand-
lands
authorized
unless
Rep.
supra,
Law,
865,
n.35; S.
Federal Indian
at
book of
(1988), reprinted
Cong.,
2nd Sess. 5
446,
No.
100th
Congress passed
to
3071,
IGRA
1988 U.S.C.C.A.N.
3075.
gaming
lands,
on Indian
federal standards
establish
§ 2702(3), and to allow state involvement
25 USC
gaming.
regard
through compacts
III
with
Class
However,
blocks
Panzer,
2d
IGRA
Wis.
regard
policy
operation
ato
valid
with
state
compact
compact
under
once that
has been executed
Dorsey
Gaming Corp.
authority.
&
Am. v.
See
IGRA's
(8th
1996).
Whitney,
Moreover,
88 F.3d
544-45
Cir.
regulatory
compact,
no
a valid
state laws have
without
power
no
land,
on Tribal
and states have
over
Sycuan
authority
police
v.
Band
Tribal casinos. See
(9th
1994);
Roche,
Florida v. Seminole
¶ 75. We further conclude that it would be unrea- sonable for the 1993 Amendment to interfere with the provision extending continuing allows or Original Compacts. Lightbourn, See 243 Wis. 2d
52The United States Supreme has Court concluded that a "legitimate public purpose" includes general broad and social interests, opposed economic to benefiting as special narrow interest. Energy Group, Reserves Inc. v. Light Kansas Power & Co., (1983). 459 U.S. of a constitu- ¶ To the reasonableness 148. determine we evaluate whether social amendment, tional changes prompted foreseeable were concerns that compact, into the and whether the State entered when sufficiently changed since the have State the conditions Trust, See at 31-32. the contract. U.S. U.S. entered gaming extent, had been To a certain because entirely past, regulated in it not unforeseeable was regulate gamingin might Yet, the future.53 that the State regulations parties anticipated on future Tribal changes negotiated in State and and to exclude Original Compacts:54 impacting "To law from Tribal ordinances, or that State law or Tribal the extent any provi- thereto, are inconsistent with amendments Compact, Compact shall control."55 sion of this this foreseeable, however, that was not It opera- invalidate the future Amendment would legisla- of the Tribal casinos. Governor tions during amendment ture considered the constitutional engaged period time that the Governor was the same negotiations compact addition, as with the Tribes. according legislative above, records discussed accounts, 1993 Amendment was news most *48 53 McCarter, County Co. v. 209 357 Hudson Water U.S. ("One (1908) are, subject they as are to state rights, such whose by restriction, of the State power cannot remove them from them."). making about a contract 54 (2005). on States 49 Limits McGoldrick, Jr., M. See James XXVI; County § Potawatomi Compact Forest Bad River §XXVI; Winnebago [Ho- Community Compact of Wisconsin XXVI; XXVIII; Compact § Compact § Lac Courte Oreilles Chunk] § XXVI; Compact XX § Menominee Compact Lac du Flambeau §XXVT; §XXVT; Compact Cliff VII; Compact Oneida Red XXVI; Com Chippewa § St. Sokaogon Compact Croix Chippewa XXVI; § Stockbridge-Munsee Compact § XXVI. pact Original Compacts. intended to invalidate the The legislature also discussed that the Contract Clause prevent closing would the amendment from down Tribal See casinos. Justice Prosser's dis- concurrence/ shortly sent, Moreover, 232. after the 1993 Amend- significant ratified, ment was the Tribes made invest- operate pursuant ments to construct and casinos to the Original Compacts,56 legis- terms of the and the State explicitly Origi- lature enacted laws that validated the Compacts proceeds nal and relied on from the casinos.57 parties' performance following records, These and the compacts, parties ratification reveal that the did not foresee that the 1993 Amendment would invali- provisions. date the extension Additionally, changed the conditions have not substantially passage since of the 1993 Amendment. party compacts. Neither has altered its rebanee on the parties' actions demonstrate that there was little legality gaming doubt as the continued of the casino pursuant Original Compacts. to the The State has con- rely compacts,58 tinued to on revenue from the and the operate Tribes have continued to invest in and casinos.59
56See, generally, Gaming Board, Wisconsin Audit Legislative Members, 1997-98 Joint Audit Committee August 3544(lm)(a) 16, §§ See Wis. Act 153 & (appropriating $330,800 $329,000 in 1993-94 and from "[m]oneys 1994-95 received the state from Indian tribes as reimbursement of regulation state costs [the] Indian under Indian ....") added). gaming compacts (emphasis year 2003-04, In fiscal Wisconsin collected $69.6 million Department Administration, from the Tribes. Division of (June 2005). Gaming, Audit at 6 See also 2005 Wis. Act. 25. Gaming Audit, 5, supra, Division of at at n.58.
60 although prohibition of ca- ¶ Therefore, the legitimate significant gaming State be a and can sino pro- interest in the State's conclude that interest, we scrutiny heightened pass hibiting gaming the does gaming respect land the on Tribal because test with operated apply to did not Amendment 1993 Original Compacts, pursuant and because to the gaming prohibition would unrea- on Tribal retroactive Original Compacts. sonably the interfere with
IV concluded, case and ¶ in this have both 80. We Panzer.;60 not invalidate Amendment does that the 1993 Original Compacts. that the have also concluded We the Origi- are valid continuations 1998-99 extensions Compacts, therefore not invalidated nal Dairyland us to nonetheless asks 1993 Amendment. prohibits the State Amendment conclude that amending compacts III Class include from Compacts.61 Original game not included that was 60 Panzer, 295, 2d 271 Wis. scope case, question as to the present we reach the In the this Original because Compacts in the gaming provisions interest," the parties and because public is "of sufficient
issue scope courts to review the asked the explicitly have Moran, 24, Wis. 2d State v. 2005 WI issue. See ("[W]hen law, has question an issue involves 700 N.W.2d public of sufficient opposing parties, briefed been decision, to address has discretion merit a this court interest issue."). brief, Dairyland asserted appeals court of In its compacts or extend authority to amend had no the Governor or 2003. The Governor authorizing gambling casino including scope original compacts, argued that they terminated. continued until were gaming provisions, *50 the 1993 Because Amendment does not ap- the Original the terms ply Compacts, compacts We note that the III Class added in 2003 include: roulette, big games, craps, wheel and other wheel poker and games, games similar non-house played banked card at tables, Let-It-Ride, blackjack- style Stud, such as Casino and War, keno, pari-mutuel Casino electronic wagering on live simul- cast, horse, events, dog racing harness and including participa- betting tion in interstate pools, banking, all other percentage and games, pari-mutuel card all and banking non-banking other dice games, Fortune, fer, Wheel Baccarat-chemin de all finite lottery lottery games, any and game other played whether as a game played table device, on an electronic or mechanical including operate machines, devices that like slot which consist of the consideration, elements of chance prize, and Caribbean Poker, Let-It-Ride, Stud and Pai-Gow Poker. court,
In its briefs Dairyland to this asserted that amendments in 2003 are The invalid. Governor advocated that this portion Court overrule the of Panzer dealing with the scope permissible gaming addition, Tribal in Wisconsin. at oral argument Dairyland asserted the issue and focus of this case governor year 1998, was "how can a in the 2003 and also how governor can that gaming anybody authorize casino when the gambling casino expressly had been prohibited by Article Section 24 of the Wisconsin Constitution it when was amended in clarify 1993?"When asked to compact which Dairy- extensions addressed, Dairyland land wanted stated: "The one 1998. I think more importantly, Later, Dairyland the one in 2003." also asserted that the 1998 valid, amendments were not but they important were not as as the 2003 amendments. similarly
Justice Prosser asserts that 1998-99 amend- enough unconstitutional, ments were not substantial to be advocates for the conclusion that the 2003 extensions are unlaw- far, ful because the observing amendments went too that games that were added in 2003 are explicitly listed prohibited Ify constitution as forms under Article 24, section clauses 3 to 6. See Justice Prosser's concurrence/ dissent, ¶ 239. compact parties can amend the
control whether gaming. analysis scope expand III This of Class parties they upon depends the intent of the when compact. Stevens, Ross & into the See DeWitt entered Gaming Racing P'ship, Galaxy & Ltd. WI v. S.C. ("The 2d 44, 273 Wis. 682 N.W.2d interpretation aim all contract ascer- ultimate omitted). (citations parties.") the intent of the tain through contracting parties can be evinced intent of the Original Compacts plain language the history *51 compact negotiations. parties provisions ¶ in each of included 82. The compacts amendments to the that relate to future games types 11 land. Each of the allowed on Tribal may operate compacts "The Tribe not states: gaming expressly in this enumerated III not Class Compact Compact amended unless this section of this Compacts pursuant further to XXX."62The section Compact provide modified, not be that: shall "This majority con- opinion "[t]he asserts that Roggensack Justice compacts to the 2003 do games added cludes concurrence/dissent, Roggensack's law." Justice violate Wisconsin gaming We do not reach 2003 285. That is incorrect. compacts. ruling arguments, simply are recognize we these we
While Original contracted scope provisions on Compacts. IV(B); County § Potawatomi Bad River Forest Compact IV(C); § Lac IV(B); Winnebago Compact § [Ho-Chunk] Compact IV(B); Compact § Lac du Flambeau Compact Oreilles Courte IV(B); Compact IV(B); Compact § Oneida Tribe § Menominee IV(B); Sokaogon Com IV(B); Chippewa § Compact § Red Cliff IV(B); Stockbridge- IV(B); § Chippewa Compact § pact St. Croix added). IV(B) Compact § (emphasis Munsee prior amended otherwise altered without the written agreement of both the State and the Tribe."63 This language clearly Compacts reveals that the allow the parties agree scope games. to amend the III Class provisions obligation These create a contractual parties agree allow new should the to amend the scope gaming.64 provisions parties' 83. These demonstrate the including scope
intent to allow for amendments,
to the
gaming;
compacts
agreement
do not contain "an
agree."
Dunlop Laitsch,
Contrast
v.
We also note that parties agree should the to amend the scope of gaming party and one agreement, violates this the See, party may other seek contractual remedies. e.g., Bad River Resolution"). §XXII Compact ("Dispute Contrast Justice Roggensack's concurrence/dissent, 328. ¶ 65 offending provision in the contract at issue Dunlop stated: compacts stating provision the can be a
contain actually putative promise to is no amended. There they provide simply Compacts future; in the amend the permissible. an amendment is that such addition, In if we determined 84. even parties' subsequent provisions indefinite, are the these scope clearly to amend the evinces their intent conduct Management Computer gaming. Servs., v. Inc. of See Baptie Co., 179-80, Hawkins, Ash, & 2d 206 Wis. (1996). scope of Moreover, because the 557 N.W.2d compacts, provision see in the a material provi- supra, ¶ 70, to find these material if we were compacts would be void indefinite, to the sions be Management Computer, at 206 Wis. 2d unenforceable. Dunlop, Instead, at we 2d 43a.66 See also Wis. agree parties to amend that, should conclude obligate clearly gaming, compacts scope parties amendments. to abide such Furthermore, when the Governor negotiate gaming attempted com- first various Tribes mutually agree parties] and come to [The at a future date shall respective understanding lands as to the use of their common surrounding their and as lake shall be formed on lands which any buildings type shall be erected on which and structure surrounding respective said lake. their lands (1962). Laitsch, 39, 113 2d N.W.2d Dunlop v. Wis. this court reasoned: Dunlop, Dunlop, parties, particularly not relied on Laitsch's had If the "B") agreement agree (Agreement been no there would have agree Agreement the failure to "A"and no dam. We think that Agreement goes Agreement "B“falls "A"and when to the heart void, goes "A" with it because unenforceable and because meeting the minds to an essential term. absence of as at 43a. Dunlop, 16 Wis. 2d
pacts, the Governor refused to negotiate over
III
Class
games,
that such
asserting
games were illegal under
law and
Wisconsin
therefore not a proper subject of
negotiation.
Flambeau,
du
Lac
latory Panzer, distinction from Lac du Flambeau. 271 Wis. 2d However, analysis n.36. this focuses on the intent of parties during the compact negotiations, and at time compact negotiations, Lae du controlling. Flambeau was See concurrence/dissent, Justice Prosser's (noting 191 n.25 du Lac Flambeau parties particular binds the to the action issued). which it was concurrence/dissent, his similarly Justice Prosser ques tions the prohibitory/regulatory distinction as applied Lac du Flambeau. Justice Prosser history examines the of the Wiscon Constitution, IGRA, sin history and the in an attempt Id., demonstrate that Lac du incorrectly Flambeau was decided. analysis 139-207. His ¶¶ is flawed. Justice Prosser asserts that the term "lottery" interpreted was intended to be narrowly original Constitution, Wisconsin therefore consti tutional amendment to lottery allow state should not have led *54 parties
¶
therefore conclude that the
in-
86. We
compacts
including
amended,
to
to allow the
be
tended
gaming.
authorizing
III
forms of
additional
Class
that
was a
the Lac du Flambeau court to conclude
Wisconsin
Id.,
However,
regulatory
191-205.
for over six de
state.
¶¶
court,
Attorney General,
cades, this
the Wisconsin
and the
consistently
a broad
Legislature
employed
have
Wisconsin
games
"lottery,"
prize
include all
of
of
term
to
interpretation
Multerer,
50,
Trompe
rel.
v.
234 Wis.
or chance. See State ex
Industries,
(1940); Kayden
Murphy,
Inc. v.
34 Wis. 2d
N.W.600
(1967).
718,
also
Prosser's
[T]he government, including Wisconsin state Wiscon- governors, may agree sin amendments of *55 compacts to gaming add forms of activity that are by permitted any state by any person, law 'for purpose organization, entity,' may but not add forms of gaming activity that are prohibited state law for all purposes persons, organizations, to all and entities. (citations omitted). Id., 107 ¶ Justice Prosser's arguments ¶ the regarding scope gaming are structurally unsound. the Although Wisconsin Constitution prohibits blackjack, ma- slot chines, and video gaming machines, art. I\( sec. 24(6)(c),68 and even though Justice Prosser and the Panzer majority conclude that the Governor the lacks
Moreover, if we were to conclude that Lac du Flambeau was incorrectly decided, advocates, as Justice Prosser the State and Tribes illegally blackjack, would have machines, authorized slot gaming video and the Original machines in Compacts, and the Original Compacts and 1998-99 extensions would be in viola- tion of the Wisconsin Constitution.
68 Constitution, The amended, reads, Wisconsin as rel in part, "Except provided evant section, as legislature this Const, may gambling not authorize form." Wis. art. W § 24. through exceptions Clauses list to the prohibi broad 1) tion, including: bingo games operated by charitable and 2) religious organizations; games operated by raffle charitable 3) religious organizations; pari-mutuel and betting; on-track 4) state-operated Furthermore, lottery. amended, Id. as 6 specifically Clause state-operated lottery defines the to ex- Original approve authority amendments to the Com- prohibited by pacts "explicitly the Wisconsin that are concurrence/dissent, Constitution," Justice Prosser's ¶ Panzer, 96, Wis. 2d these conclusions blackjack, conveniently neglect slot to mention gaming explic- machines, and machines are also video itly prohibited the Constitution. only way to conclude that scope gaming allowable under
Amendment limits the Compacts Original the 1993 is to conclude Compacts.69 Original applies Under Amendment proposed by analysis Prosser, if the amend- Justice blackjack, gaming, applies scope then slot ment in the machines, and video machines included Compacts Original Yet, are now Jus- unconstitutional. blackjack, Roggensack slot deem tices Prosser gaming machines, authorized un- machines, and video Similarly, Original Compacts, if to be lawful.70 der applies Original Compacts, the to the the Amendment to the Potawatomi Com- addition of slot machines pact, first time and the decision to allow the black- jack at Tribe's casino Meno- the Potawatomi *56 Valley, included in the 1998-99 monee which were both roulette, blackjack, poker, casino-style games, including elude machines, keno, gaming. (emphasis Id. slot video craps, added). 69 240-45; concurrence/dissent, Prosser's ¶¶ See Justice concurrence/dissent, (concluding Roggensack's Justice types Amendment the has no effect on although that compact or prior to 1993 the 1998-99 gaming compacted games extensions, types new precludes the 1993 Amendment Compacts or the 1998-99 Original were not included in the extensions). 239; coneurrence/dissent, Prosser's ¶¶ See Justice concurrence/dissent, Roggensack's Justice constitutionally prohibited are extensions, forms of Class gaming. logical III Taken to conclusion, its under the analysis proposed Justice Prosser's concurrence/dis- games sent, the Tribes cannot conduct these because they are now unconstitutional. Original Compacts fully
¶ 90. Either the are they ways. force or are not—it cannot he both This impose cannot, not, court and should the court's own by deciding games values that some III Class are not as protected by Original substantial, and therefore Compacts, games and that other are too substantial to protected. be Original
¶ 91. Because we conclude that the Com- pacts were not invalidated Amendment, compacts lawfully been extended, have Original Compacts Original are in full force. The Com- pacts specifically contemplated amending compacts, including type of Class III that can be conducted on Tribal land.71 In addition, as this court previously provision stated, has "if the of the constitu- legislative impairs tion or the act of a state" a substan- right, provision tial contractual the constitutional or "utterly They purposes statute is are, void. for all they impair, they the contract which if as had never Compacts Each of the states: "To the extent that State ordinances, or thereto, law Tribal amendments are with any provision inconsistent Compact, this this Compact shall control." XXVI; Bad River Compact County § Forest Potawatomi Com-
munity § Compact XXVI; Wisconsin Winnebago [Ho-Chunk] Compact XXVII; § XXVI; Lac Courte Compact § Oreilles Lac du Compact XXVI; § Flambeau XXVII; Menominee Compact § XXVI; § Oneida Compact XXVI; § Red Compact Sokaogon Cliff § Chippewa Compact XXVI; -St. Croix Chippewa Compact XXVI; § Stockbridge-Munsee Compact § XXVI. *57 & Works v. Union Oil & Peninsular Lead Color
existed."
(1898).
493,
Co.,
359,
76 N.W.
Paint
100 Wis.
the time the Original Compacts
the law at
words,
other
compacts.72
parties
into controls the
were entered
decision,
Lac du Flambeau
under
negotiated under the
Therefore,
III
were negotiable.
all Class
games
which
Tribes agreed
III
that
the State and
to
games
the Class
are lawful.73 We
negotiations
in their
extension
compact
to the
Panzer
language
contrary
withdraw any
III
for Class
negotiate
would limit the State's ability
Original Compacts.74
under the
games
criticizes this decision
Justice Roggensack
¶
entirety.
Panzer in its
She contends
failing
to follow
they
final
are
decisions of this court are
unless
on a motion for reconsideration
overturned
set aside
Justice
a federal court on
federal
question.
concurrence/dissent,
Because Pan-
Roggensack's
645-47;
2d
Life,
Reserve
108 Wis.
at
Von
See also
Hoff
("[T]he
man,
at
laws
the time
¶ It that, 93. is true this court adheres reliability to stare decisis to maintain confidence promote predictable, decisions, court evenhanded, development legal principles, and consistent and perceived integrity contribute to the actual and judiciary. Employ- Controls, Wisconsin Johnson Inc. v. Wausau, ¶ ers Ins. 108, 2003 WI 95, 60, 264 Wis. 2d (citations omitted). N.W.2d However, this court prior has also concluded that decisions should be perpetuated they wrongly if were decided in the first place. damage by "We do more to the rule of law obstinately refusing thereby perpetu- errors, to admit ating injustice, by overturning than an erroneous deci- Id., ¶ sion." again impair- 94. We note that these contract explicitly
ment concerns were left unresolved this Panzer, court 295, 271 Wis. 2d 102. We find it disingenuous major- that some members of the Panzer ity analysis refused to reach the Contract Clause properly Dairy- it,75 was before and now criticize the 75 See, DNR, e.g., Hilton v. 2006 WI 293 Wis. 2d N.W.2d 166. Supreme
When only the Wisconsin Court elects to hear ten percent presented review, of the cases public expects to it for deserves the court "take cases to decide the substantive majority deciding opinion for the issue. This land making nothing Governor has to do with one decision good.76 look We have look bad another Governor simply this court in reached the issue left unresolved Panzer.
V Upon examining impairment of con- *59 Amendment to the raised the 1993 tracts issues Original regard to the Constitution with Wisconsin Compacts Tribes, the conclude between State and we iy Section that 1993 Amendment to Article the 24 Origi- invalidate the the did not Wisconsin Constitution Compacts Original Compacts. contem- nal Because the amending scope plated extending and of Indian the provide meaningful analysis guidance on presented and and issues deciding by judicially issues, important to them created avoid doctrines.'1 avoidance concurrence) (Prosser, Hilton, 1, (quoting J. 2d 54¶ 293 Wis. to' Is the Decision- Elected Decide: Roggensack, Patience D. in Weight Appropriate Doctrine Great Avoidance Deference (2006)). Resort?, 541, Marq. L.Rev. 544 this Last Court of initially in Panzer con- petitioners also note that We invalidating a pre- precluded the Contract Clause ceded that existing contract: Amendment not claim that the Constitutional Petitioners do any compact place that This is not an issue at time. invalidated Wisconsin, Impairment of part under
in this case in because I, 1, § lacks Art. 10 cl. Clause of U.S. Constitution Contracts agreement. authority existing an to invalidate Panzer, Mary E. John G. Page 31 of Brief-in-chief Petitioners Legislative Organization, filed and Joint Committee on Gard (dated 2003). 22, Panzer, 2d 295 October 271 Wis. concurrence/dissent, Roggensack's Compare Justice 294-298. gaming, parties' right constitutionally- of renewal is protected by the Contract Clauses of the United States Constitutions; and Wisconsin Original Compacts amendments expand scope gaming are constitutionally protected by likewise the Contract Clauses the Wisconsin and United States Constitu- Therefore, tions. we affirm the order of the circuit Accordingly, gaming expanded court. can be to the negotiate extent the State and Tribes for addi- games. any language tional Class III We withdraw contrary in Panzer that would limit the State's ability negotiate for Class III under the Original Compacts.77
By the Court.—The order of the circuit court for County Dane is affirmed. (concurring).
¶ 96. CROOKS, N. PATRICK J. While join majority, separately I I write to reaffirm the Doyle, conclusions reached in our dissent in Panzer v. (Abraha Wis. WI 2d 680 N.W.2d666 Bradley, dissenting), mson, C.J., J. Crooks, J. as well my position Dairyland Greyhound as Park, Inc. v. *60 Doyle, 34, 2004 267, WI 270 2dWis. 677 N.W.2d275. equally
¶ 97. Our in conclusions are Panzer valid regard today. "[w]hile with to the case before us First, § change the amendment to Article R7 did respect gaming, Wisconsin's law with to it did not affect compact Panzer, the ¶ before us." 295, 2dWis. (Abrahamson, Bradley, C.J., Crooks, J. and J. dissent ing). legislative history fact, the makes clear that Article Section of the Wisconsin Constitution was IV apply, applying, neither to intended nor had the effect of existing gaming compacts. majority to then Indian See op., ¶¶ 36, 49, 44, 66.
77See, Panzer, e.g., 93, 2d 271 Wis. 96. ¶¶ in in our dissent determined ¶ Second, as we 98. power properly his exercised Panzer, "the Governor entering § into pursuant 14.035" both to Wis. Stat. negotiating Compacts, Original the 1998 as as well the ¶ 124. Panzer, 271 Wis. 2d amendments. and 2003 long compact does explained as a case "as in that weAs provision, the a statute or constitutional contravene § may 14.035, governor Stat. into it under Wis. enter gover- provisions embracing the and conditions those gov- promote interests of the the will best nor deems Id., ¶ 153. ernment." ap- that an we concluded
¶ Third, Panzer 99. the to plication amendment the 1993 constitutional "substantially impair compacts the contractual would and relationship and the Tribe between the State ¶ impairment Id., 256. clause." contracts violate compacts language demonstrated of the The clear parties the laws of Wiscon- bound intended be "Regardless they ¶ Id., 194. existed 1992. sin as preexisting laws, the or amendments future laws compact agreed control parties terms to let the relationship." Id. their parties into entered
¶ "At the time the 100. negotiated games compact, III could be all Class compact." ¶ permitted Id., As our 195. under were permit- explained, was the state because Panzer dissent "any games, respect negotiate III to Class with ted to altering types iy § attempt Article as to read compact negotiated may for under be agreed, parties compact impair which the would United States therefore, afoul of the would, run impair- against clauses constitutional and Wisconsin Id., ment of contract." reasoning in Panzer and conclusions Our holding majority's at in the case
are consistent with *61 Ultimately bar. conclude, we as we did in our Panzer iy dissent, that Article Section of the Wisconsin apply existing Constitution does not to then Indian gaming compacts, properly that the Governor exercised authority Original Compacts, his to enter into the negotiate the amendments in both 1998 and 2003, and any application of the 1993 constitutional amend- compacts ment to the violates both the state and federal impairment Id., ¶¶ of contracts clause. 124, 256.
¶ join 102. For the aforementioned reasons, I majority opinion, reaffirm our conclusions our Pan- respectfully dissent, zer concur. I am authorized to state that Chief Justice
SHIRLEY S. ABRAHAMSON and Justice ANN join WALSH BRADLEY this concurrence. (concurring part, PROSSER, DAVIDT. J. dissenting part). Doyle, In Panzer v. 52,WI 2d 295, Wis. 680 N.W.2d666, this court was asked to review gaming compact four amendments to the 1992 County between the State of Wisconsin and the Forest Community. Potawatomi The court concluded that three of the amendments were invalid. At the same upheld original time, gaming the court compact by implication, and, compacts; 10 similar and it implied that a 1993 constitutional amendment restrict ing gambling impair in Wisconsin did not these com pacts petitioner or bar their extension.1 In case, this interpretation seeks a definitive of the 1993 constitu asking explicitly tional amendment, whether the Gov- 1 For an extensive discussion of Doyle, Panzer v. 52, 2004 WI 271 Wis. 2d 680 N.W.2d see Panzer Wawrzyn, James J. Doyle: v. Wisconsin Constitutional Law Deals the Governor A Hand, New (2005). 89 Marq. L.Rev. 221 *62 gaming authority amend extend Indian to or ernor has gambling prohibited compacts are that to allow forms law. under Wisconsin My
¶ are follows. 105. conclusions as government, in- ¶ state First, 106. the Wisconsin governors, cluding and will have violated Wisconsin 24 of the Wisconsin Article Section not violate IY Original by extending Compacts, so Constitution may engage in the same Indian tribes that Wisconsin they negotiated gaming activity in their that forms governors Consequently, original compacts. Wisconsin compacts. gaming obligated nonrenew these are not to regard, majority opinion is correct. this government, ¶ state Second, the Wisconsin may agree including governors, amend- to Wisconsin compacts gaming gaming activities to add ments of by any purpose permitted by "for are state law entity," organization, any person, 25 U.S.C. or 2710(d)(1)(B), may gaming § not add activities but purposes by prohibited all for all to state law are gover- organizations, persons, and entities. Wisconsin gaming authority approve activi- new have no nors by prohibited 24 of the Article Section ties that are IY criminal law. Constitution state Wisconsin majority's determination that Third, the 24 had no Article Section amendment to the 1993 IY original gaming Indian com- on the effect whatever gov- holding pacts that Wisconsin mistaken; is and its compacts, by power, to amend virtue of the ernors have prohib- any gaming compacts activities not to add the Wisconsin law, contradicts both ited federal and federal law. Constitution far-reaching. majority opinion It 109. The overruling portions of the much more than involves right giving tribes the decision and Wisconsin Panzer play poker, craps, roulette, and keno at their casinos in country. opinion explosion Indian could lead to an gaming of new activities. majority governor's
¶ 110. The concludes that a authority negotiate source of new amend- § provi- ments is not Wis. Stat. 14.035 but rather the existing gaming compacts sions buttressed impairment of contracts clauses of the United States *63 analysis, and Wisconsin Constitutions. Under this governor's authority is not limited the Wisconsin Constitution or state criminal law. This determination permit governors negotiate ap- will prove Wisconsin major gambling expansions
such as off-track pari-mutuel betting, betting sporting jai on events, alai, banking games, all card which are barred prohibited by Wisconsin Constitution but not federal law. majority's
¶ 111. If the determination that governor's Wisconsin Constitution does not check a power negotiate gaming compacts correct, is then the majority overruled, has silentio, sub Panzer insofar as it declared invalid the 2003 duration amendment and the waiving sovereign immunity. 2003 amendment Three of majority supported the four members of the these in amendments their Panzer dissent. partial
¶ requires expla- 112. This dissent a full offering explanation, nation. In this I believe it history iy essential to understand the of Article Section leading up litigation. sociologist 24 and events to this As Robert Nisbet once observed, "Wecannot know where going, are, we much less where we are until we know where we have been." my orga- 113. To assist the reader, dissent is following headings:
nized under the
78 the Wisconsin Con- I.Methodology Interpreting stitution Article Section as Created Interpreting
II. IX the 1848 Constitution 24 Amended in Article Section as Interpreting III. IX Decision States District Court's IV The United Case the Lac du Flambeau to the Lac du Flambeau Legislative Response V The Decision 24 as Amended Article Section Interpreting
VI.
IV
Indian
of Article
Section
on
VII. The Effect
IX
Gaming
FOR INTERPRETING
I. METHODOLOGY
THE
CONSTITUTION
WISCONSIN
provisions
interprets
of the Wis-
114. This court
Craney,
Thompson v.
de novo.
consin Constitution
(1996) (citing Polk
674, 680,
2d
The of construction of a constitutional give is to effect to the intent of the sion] framers it; people adopted and it is a rule of construc- who they all applicable tion constitutions that are to be objects they promote construed so as to for which adopted. were framed Cole, 520,
State v. 2d Murphy, 2003 WI 264 Wis. (quoting Kayden Indus., N.W.2d328 Inc. v. (1967)). 718, 729-30, Wis. 2d 150 N.W.2d447 employ ¶ 116. The reasons we a different method- ology interpretation for constitutional are evident. Con- provisions they stitutional do not become law until are approved people. Voters do not have the same legislators provision to the access "words"of as the who words; framed those and most voters are not familiar legislature. with the necessarily a result, debates As voters explanations consider second-hand and dis- addition, cussion at time of ratification. In meaning may obscuring time, of words evolve over original meaning purpose provision. original aof meaning provision might of a be lost if courts could not Finally, interpreting resort to extrinsic sources. a consti- provision likely lasting tutional to have a more effect interpretation statute, than the of a inasmuch as statu- tory language easily changed can be more than constitu- language. Thus, tional it is vital for court decisions capture accurately provi- of a the essence constitutional *65 sion.
80 background, Against our traditional this may interpretation methodology2 be on constitutional as follows: restated meaning plain give priority to the Courts should provision in context of a constitutional
of the words 141 568, Smith, 550, 2d 247 N.W.2d v. 74 Wis. used. Buse (1976). meaning plain is best discerned of the words The meaning ordinary understanding at by their obvious adopted, taking provision into account was the time provisions contemporary) (especially consti other Schinz, 397, 194 Bare v. Wis. See State ex rel. tution. (1927). 403-04, 216 N.W. analysis may view the "historical
2. Courts
practices
in
of what
were
constitutional debates
may reasonably
in
which the court
existence
presume
the framers of the
known to
were also
principle permits courts to con-
This
Id.
constitution."
surrounding
the con-
amendments to
sider the debates
at
the time these
and the circumstances
stitution
Connor T.
Justice
methodology was summarized
This
Smith,
550, 568,
2d
247 N.W.2d
v.
74 Wis.
Hansen
Buse
(1976):
provisions
interpretation
this court is
of constitutional
its
analysis
Education
utilized in Board of
to the method of
committed
(1974)].
Sinclair,
The court will
[65
2d
v. Wis. view: used;
(1) plain meaning context the words (2) analysis and of of the constitutional debates The historical may practices which the court in existence what were reasonably presume the framers of the 1848 also known to were ... and constitution (3) legisla- interpretation [the] section The earliest following adoption passed in the first law ture as manifested the constitution. omitted). (citations Id. *66 adopted.
amendments were We have said that courts may history meaning examine "the times," of the only legislative history provision (including of a amendments) changes in word the drafts of but also society special emphasis "the state of time," at the with "practices usages" on the then in existence, so as to identify provision sought concerns to address. Sinclair, See Bd. Educ. v. 179, 184, 65 Wis. 2d (1974) (quoting N.W.2d143 State ex rel. Zimmerman v. (1930)). Dammann, 84, 89, 201 Wis. 228 N.W.593 These by contemporary concerns are often illuminated de explanations provision bates and of the both inside and legislative outside chambers. may interpreta
3. Courts
scrutinize the earliest
provision by
legislature
tions of the
as manifested in
passed following adoption
provi
the first laws
of the
(citing Payne
Buse,
sion.
74 Wis. 2d at
Racine,
v.
(1935)). Legislation
217 Wis.
¶ 118. The stated here is the meth- odology employ interpreting I will Article Section IY 24 as it was created in 1848, as it was amended in again and as it was amended in 1993.
II. INTERPRETING ARTICLE SECTION IY AS CREATED IN THE 1848 CONSTITUTION originated ¶ 119. Article Section in the IY original provision Wisconsin Constitution of 1848.3The gambling. was not intended to cover all forms This language provision, conclusion is based on the of the original form, In its Article 24 provided: Section "The IY legislature shall not authorize lottery, grant any or divorce." and the historical context of provision, purpose before and including legislative activity provision, adopted. after the was provision we focus on words. Noah First, An Lan- Dictionary English American Webster's (1828) defined as follows: guage "lottery" chance, prizes by A scheme for the distribution *67 by are often authorized the distribution itself. Lotteries in law, many good prin- men deem them immoral but in the ciple, opinion all men concur and almost are pernicious. their effect
2. Allotment. Dictionary the English An American Webster, Noah of (1828) (unpaginated).4 Language "A for the distribution of prizes 121. scheme or all all schemes does not implicate chance" instance, For chance, and involve consideration. prize, An Ameri- Webster, in Noah dictionary, Webster's (1853), Dictionary English Language can Webster and other terms: "gambling" defined money or stake." play game "To for other Gamble: Webster, supra 492.5 Webster, 492.6
Gambling: "Gaming money." supra for game, Gaming: playing any "The act or art of or stake." victory, prize for a or for a contest Webster, Dictionary Noah An American See also (1853). English Language Webster, Dictionary American Noah An See also (1828) English Language (unpaginated). 6 Id. using cards, dice, billiards,
2. "The practice and the like, according rules, winning certain money, &c." Webster, 493.7 supra game chance,
Roulette: "A in which a small ball is rapidly made to round move on a circle divided off into red or black on spaces, stops as it the one or the other, Webster, player wins or supra loses." 965. "lottery" Webster did use word these defini- "lottery" "gaming" tions. He use did not inter- changeably. people now, as did not associate lottery. dice and billiards with a Moreover, in the mid-1800s, other forms of were not "often although gambling law," authorized some was not prohibited. Douglas Farnsley Thus, was correct when usage lottery synonymous he wrote, "In common is usually raffle, with a and Wisconsin the term law given meaning." Douglas Farnsley, this Charles Ellerbe Gambling Experience, and the Law: The Wisconsin 1848-1980, 1980 Wis. L. Rev. Second, we examine the historical context. adopted anti-lottery legisla-
Most states amendments or *68 involving tion because of notorious lotteries, scandals including Lottery by the National Grand authorized Congress. Farnsley Panzer, 271 Wis. 295, 2d 7.8 ex- plains that:
Following War, Revolutionary the most states had re- heavily lied financing on lotteries as a public means of works supporting as orphanages institutions such and hospitals. These states had also authorized various organizations philanthropic such as churches and uni- 7Id.
8 Scarne, John Complete Gambling Scarne's New Guide to 150, (1974); 152 Clark 40, see also v. 12 Washington, Wheat. 25 (1827). U.S. 40
84 and organizations lotteries. States to conduct versities usually management companies to upon relied had turn The would then companies conduct the lotteries. Thus, profits sponsor. of the percentage over a may fundraising have schemes been while lotteries they gambling were sponsor, for the commercial 1833, Penn- management company. In relation to Massachusetts, York sylvania, and New had abolished large practices due in measure to fraudulent lotteries Many other states lottery management companies. their Prior to the War Between the States followed lead. The all three states had barred lotteries. but drafters of acted within this historical Wisconsin's Constitution banning context in lotteries. added). at 854
Farnsley, supra, (emphasis "historical observation about Farnsley's is con- "lottery" provision explains why context" IV Article IV is the constitutional tained Article within It is fundamental "Legislative" power. on article legislative law that state of state constitutional precept v. Pub. Dep't in nature. Cutts power plenary (1957). 416, 408, 84 102 Welfare, Wis. 2d N.W.2d grant legislative not Wisconsin Constitution does legis- limits or directs how it power;9 legislative power iy Article lative exercised. should be power ("The shall not authorize legislature Section divorce") specific contained two grant any or lottery, political principle that suppose be a well-settled 'We it to regarded grant as a is to be the constitution the state upon powers power, but rather as a limitation legislature legislature, and it is competent by the constitution legislative all not forbidden power exercise government, or delegated general prohibited to the constitution of United States." 408, 84 N.W.2d102 Welfare, 2d Dep't Cutts v. Pub. Wis. (1860)). (1957) Beloit, 10 Wis. Bushnell v. (quoting *69 legislative limitations on power, pronounce- moral ments on gaming and divorce.10 124. The New York Constitution of 1846 often served as a model for the I, Wisconsin drafters.11 Article Section of that that, constitution provided "No law shall be passed abridging right of the people peace- ably to assemble and petition nor government... shall any divorce be than granted, otherwise by due judicial nor proceedings; shall any lottery hereafter be authorized or any lottery sale of tickets allowed within this state." The 1846 New York Constitution linked the legislative on proscription authorizing "any lottery" on legislative proscription granting "any divorce,"12 as did the 1848 Wisconsin Constitution. Wisconsin) Tri-WeeklyExpress (Madison, The January
8, 1848, part carried of the convention debate about language "divorce" paper Article Section reported IY Whiton, justice court, that Edward later chief supported of this prohibition legislative divorces, on indicating legisla granted tures frequently on parte divorces ex evidence or on no evidence at all. Whiton an related instance a man and wife together many years divorced, who had lived having been wish, knowledge without upon their or the petition of various by individuals. "He said the courts our law have discretionary (Milo power." Quaife, ed., The Attainment M. Statehood 439 1928). The provision grounded constitutional on divorce was legislative concern divorces, about in granting abuse not out right opposition to divorce. 11See, Attorney Brunst, e.g., Gen. ex rel. Schantz v. 3 Wis. (1854). [*787], 692 [*790] linkage The same is found in the 1845 Louisiana Consti (General Provisions)
tution. Title Under VI of the 1845 Consti tution, provided: lottery Article 116 "No shall be authorized State, buying selling this and the of lottery tickets within this State, is prohibited." Article 117 then added: "No divorce shall granted be Legislature." *70 about this significant is especially 125. What the iy 24 is that New of Article Section source probable v. Gray, construed in Reilly was lottery York provision not to on horse (1894), betting to apply N.Y.S. the York New purpose The the explained races. court provision: had existed many years prior to 1821 there
For than such of all lotteries other prohibition for the laws Legis- Legislature. The authorized the as should be to lature, however, acts them by special had authorized prohibi- constitutional an as to call for a such extent to Evidently it not deemed wise trust was tion. subject. Legislature on the very it was not clear that
... It seems... ... in the Constitution intention of the framers subject of to in it the "lottery," include use of the word They dis- by statute. were betting prohibited then as public in the upon the statute book and subjects tinct both, they mind, and, design had been cover if been named. would have omitted). (citation
Id. at at no record of discussion 126. There about the "lot- Convention Constitutional Wisconsin's controversy suggests The absence language. tery" old from New borrowing concepts were the framers new originating than states rather York and other ones.13 Maryland State Constitution treatise on A recent Maryland parallel:
describes original history The Maryland's trend. mirrors national although lotteries Maryland lotteries did not mention Constitution projects Under government common. for local were to raise funds Assembly specific name lottery grants, would the General these lottery required post conduct the bond and individuals were who Farnsley's ¶ 127. use word "authorize" in explanation his historical matches constitutional language Farnsley, supra, in Article Section 24. at IY implies 854. This word that the Wisconsin framers had specific legislative concern about official authoriza- opposed lotteries, tion of gambling. as to a broad concern about all legislature ample police power had regulate prohibit gambling. purpose all Thus, the provision deny legislature the constitutional *71 was to our authority give imprimatur to its to lotteries as government private source of or revenue so because many proven corrupt. lotteries to had be or unreliable Id. building
¶ point, 128. Third, on the second language contemporaneous state al- constitutions always language lottery most included "tickets," on indicating participation opposed participa- mass as to by people. tion a small number of For instance, Article Michigan pro- 12, Section 6 of the 1835 Constitution legislature any lottery vided: "The shall not authorize permit lottery nor of the sale tickets." Article Section IY lottery 29 of the 1846 Iowa Constitution stated: "No shall be State, authorized this nor shall the of sale lottery tickets be allowed." The 1849 California Consti- provided lottery tution in Article Section that "No IY shall be allowed State, this nor shall the of sale lottery tickets be allowed." The 1859 Kansas Constitu- te) early legislature began raise a stated As amount. as to
try regulate proliferation lottery grants. to Constitutional provided phasing-out amendments in 1835 and 1840 for lottery grants. prohibited state The lottery 1851 constitution grants provided phase-out existing lottery grants and for a suggesting previous that the amendment was ineffective in ban- ning lotteries. Maryland Constitution, State A Reference Friedman, Dan (2005). Guide 3) (Article declared that "Lotteries 15, Section
tion tickets are forever lottery prohibited."14 the sale of Illinois pro- In 1870 a revised Constitution Assembly iy Section 27: "The General vided Article gift or enter- no to authorize lotteries power shall have pass prohibit and shall laws prises, purpose, in this tickets lottery gift enterprise sale added.) The Illinois Constitution (Emphasis State[.]" than 20 after the Wisconsin shows that more years to the south was our adopted, neighbors Constitution form of that utilized gambling lotteries as a specific saw tickets. also of 1921 is 130. The Louisiana Constitution XIX, Section 8
instructive. Article provided: pass Legislature and the shall Gambling is vice it. suppress laws agricultural products or
Gambling in futures on parties necessity, the intention articles of where delivery, an fide is not to make honest and bona Legislature against public policy; declared be pass suppress shall laws to it. *72 lottery prohib- of tickets are
Lotteries and the sale ited in this State. gambling types did bar of lottery provision other This 1, According September Dodge City. as to a
in such frontier towns Times, ranges from a 1877, Dodge City "Gambling article in the pot. poker dollar game chuck-a-luck to thousand of five-cent the main street Nothing secret, open upon but with doors is www.spartacus.schoolnet. uninterruptedly." on See ball rolls co.uk/WWdodge.htm. was Casino-type gambling point.
This is not a trivial during parts and in much of West widespread on riverboats lottery in notwithstanding prohibitions Century, the 19th of gambling familiar in old west image The states. individual figment imagination. not a of modern saloons is The 1921 Louisiana ¶ Constitution drew an explicit distinction between lotteries and other forms This gambling. distinction is underscored self- (but executing provision on lotteries not other gambling) and the reference to "lottery tickets." The reference to tickets was a uniform nearly pattern states, at the especially time Wisconsin Constitution was The adopted. fact that the Wisconsin Constitution did not refer "lottery tickets" 1848 should not be as a interpreted departure from that at pattern, least without some evidence an support such interpreta- tion. 132. Finally, the experience outside Wisconsin
consistent with the experience Pre- Wisconsin. statehood territorial legislation governing gaming tables did gambling lotteries; devices not address post- legislation statehood distinguished between lotteries and Panzer, other forms of gaming.15 295, 2dWis. 7.16 15At the Legislative Assembly First Session of the Territory Wisconsin, legislature territorial approved an prevent punish 65, act to gambling. Ch. Laws of the 1838). Territory, (approved 18, Wisconsin First Session Jan. The provided setting act criminal penalties up, keeping, and any permitting gaming table or gambling betting device money table, at but it made no reference to The lotteries. 1839 Statutes of Wisconsin contain "An Act to provide for the punishment against public offences policy." (1839). Territory Statutes of the of Wisconsin 363-65 The first 9, seven sections of lotteries, this act deal with while sections and 10 other gaming. legislation deal with forms of This was carried over after statehood. Chapter Against "OfOffences Policy," Public Revised Statutes of the State of Wisconsin (1849). early statutes, faro, 705-07 these table such as O," "E differently and roulette were treated from lotteries. Id. 16For a history discussion of the lottery, Wisconsin's see Ritsche, Dan Legislative Bureau, Wisconsin Reference
90 Farnsley article, *74 possible public local fairs would not been if have had iy understood Article 24 Section as a ban on all gambling.
¶ 135. The distinction between lotteries and the "gaming" "gambling" broader terms also found early instance, Lewis, court decisions. For in State v. (1860), [*434] Wis. 483 the defendant was indicted "for permitting gaming gain upon pre- for with cards his added). [*434] (emphasis mises." Id. at 483 The decision as discusses cards devices and it mentions poker, euchre, bank, faro and roulette but never uses "lottery." the word "lottery"
¶ 136. The first case to
use
word
was
Grosskopf
Lemon v.
427,
Wis.
¶ 137.
in a
case,
third
we see this court
"lottery"
"gaming"
use the words
in the same
opinion. Sperry
Weigle,
Dairy
& Hutchinson Co. v.
State
(1918)
Comm'r,
& Food
166 Wis.
[T]he trading the conduct of stamps in connection with such redemption thereof lawful business. .. and premiums in addition of merchandise or articles *75 pernicious with evil and con- sold attended articles tendency general affect the a sequences, which have "lottery" attending evils similar in welfare effect "gaming." and (emphasis
Sperry Hutchinson, 166 622-23 Wis. at & added). approvingly quoted Rast: "This The court also may 'lottery,' may be not in an exact sense a not be called 'gaming'-, may, hav- however, as be considered called it Sperry ing & ..." and evil of such. the seduction (quoting Rast, 240 U.S. Hutchinson, at 623-24 166 Wis. added). 365) trading stamps (emphasis at The use prize, chance, and consider- the elements of involved lottery stamps trading within the did not fall ation, but required spe- stamps prohibition The these statute. acknowledged legislation. in 1916 this court Thus, cific "gaming." "lottery" all-inclusive term that was an reviewing up, relevant 19th To after sum Century early Century material, I find no 20th Con- of the 1848 Wisconsin framers evidence adopted people to ban it intended and the who stitution by gambling approving Article Section all forms of IY legislature prevent They from intended to participation authorizing particular form mass frequently gambling a source of used as had been public private historical context The revenue. interpre- limiting provision requires a shows that the tation.
III. IV, INTERPRETING ARTICLE SECTION 24 AS
AMENDED IN iy ¶ 139. Article Section was amended three times between 1848 and 1986. The first amendment (1965) permitted promotional certain kinds contests by excluding watching such actions as a television program, filling coupon, visiting out a or a mercantile from establishment consideration an "as element aof (1973) lottery." The second amendment authorized (1977) bingo. charitable The third amendment autho- rized charitable raffles.
¶ 140. In 1987 the constitution was amended pari-mutuel betting twice more to authorize on-track operated lottery. interpreting and a state the latter provision, begin lottery we with the words. The 1987 provided: amendment
(6) legislature may The authorize the creation of a lottery to be operated provided state as law. expenditure public funds of revenues derived lottery from operations engage in promotional ad- *76 vertising of the lottery Wisconsin state prohibited. advertising Any lottery the state shall indicate the lottery a specific odds of ticket to be selected as the winning for prize ticket each amount offered. The net proceeds lottery of the deposited state shall be in the treasury state, of the be property used for tax relief provided by as law. (6) wording
¶ 141. The of subsection was consis- (1). my interpretation tent with of subsection Notwith- (1) standing general legislative the bar in subsection on (6) "any lottery," gave authorization of subsection legislature authority permit single sponsor a —the operate, lottery create, state —to and advertise a with multiple prizes. People eligible could make themselves by purchasing prizes fair, "tickets." To be these for people lottery required to advise state was however, lottery specific as ticket to be selected "the odds of winning prize For amount offered." ticket each lottery overriding purpose of the was the state, the pro- property generation relief as "for tax of revenue scrutiny public professionalism law." vided lottery protect operation given would to state mismanagement people or fraud. from (6) "lottery" ¶ word in subsection 142. In 1987 the enterprise every gambling gave applying no hint involving prize, chance, consideration. interpreting amendment, we are By history expected of the times. to consider Michigan, neighboring Il- three Wisconsin's states — up approved lotteries and started and Iowa—had linois, At least soon to follow. Minnesota was like Wisconsin's. lotteries before Wiscon- state 26 states had established sin acted. "Gambling pro- report in California" A on Research Bureau the California
duced background: explains leading awas
Growing to tax increases opposition in the 20th establishing state-run lotteries factor the first state to century. Hampshire was In 1964 New by New York in 1967. New lottery, followed sponsor financially modern Jersey the first successful launched lottery in 1971. legal 37 states and District are now in
Lotteries Columbia. Gambling II-9, III-l, Roger California, Dunstan, *77 Library California State Bureau, Research California (1997) http://www.library.ca.gov/CRB/97/ at available (last 2006). Mar. 2, visited infor- This 03/crb97003.html provides mation historical context. Lottery October 1989 the Wisconsin Attorney Hanaway
asked General Donald J. to answer (1) questions: scope gaming two What is the in which Lottery permitted the Wisconsin or authorized to engage by Article Section 24 of the Wisconsin Chapter Constitution and 565 of the Wisconsin Stat- (2) Lottery legally utes; and If the Wisconsin cannot particular type gambling operation offer a or part lottery, may type game as of the such gambling operation lawfully be included in state-tribal gaming compacts Gaming Regulatory within the Indian § Act, 25 U.S.C. 2701-2721? Attorney Hanaway General answered questions opinion. Op. Att'y
these ain 1990 Gen. 14 (1990). Tottery" He concluded that the term in the constitution and statutes did not include all forms of gaming:
Betting, playing gambling operating machines and gambling places are be considered as included meaning within the of the term lottery as used in the constitution, and chapters 945 and Stats. (1987-88). Therefore, clear, it is meaning lottery term as contained the constitution and both legislative present enactments up day does not include and is not meant embrace all the forms gambling.
Id. at 26. Attorney Hanaway
¶ 147. General observed that provisions subject constitutional on the same are nor- mally together pari construed and considered to be in *78 provi- Id. He also asserted that constitutional materia. sense. statutes, should be construed make sions, like legisla- during the entire to me that apparent It years, advisability of debate, on tive over several a constitutional providing resolution adopting a lottery, during authorizing operated a state amendment the ratification of such prior debate public referendum amendment statewide constitutional 1987, during legislative deliberations April enabling legislation on the enactment and debate amendment, there chapter lottery constitutional legislative public or debate or discussion was neither playing intent to authorize the legislative public nor machines, gam- video roulette, blackjack, craps, slot types and forms of casino bling machines and other gambling.
Id. at 26-27. Hanaway's Attorney reference to
¶ 148. General Chapter to the fact that the the statutes alluded 565 of following legislation amend- the enactment of the first lottery specific operated a as dealt the state ment with gambling. form of Hanaway's implications opinion 149. The opinion, light In Wisconsin's
were controversial. to demand and bands not entitled 11 Indian were tribes lottery gambling amendment. How- based on the casino legislature constitution was not barred ever, the authorizing gambling, machines, and slot casino from games. legislature fact, could authorize video country." "just gambling at 32. A Indian Id. casino Hanaway's opinion implication was that more subtle previous general, Supreme attorneys the Wisconsin Legislative been Bureau had Court, and the Reference provision. original reading For into too much Hanaway's opinion sharply reasons, diverse was criti- cized, and he was in the defeated November 1990 election.19 attorney general, Doyle, 150. The new James E. opinion May Att'y Op.
issued a second 1991. 80 Gen. (1991). Assembly Organization Committee *79 "[D]oes iy asked him: Wisconsin Constitution, article prohibit gambling section all forms of Wisconsin, in except specified for those matters in the Constitution, 'lottery' or does constitutional term have a narrow scope legislation legal- that would allow to be enacted izing gambling forms to which reference is made in 3-90?" Id. 53. OAG at Attorney Doyle
¶ 151. General concluded that the legislature involving could not authorize scheme prize, amending chance, and consideration without bingo, constitution unless the scheme fell within the pari-mutuel lottery exceptions raffle, on-track, state to the added, constitution. Id.20 He however, that "the Legislature may any type state-operated authorize lottery subject only advertising, to the use-of-revenue wagering Legislature and off-track restrictions. The may they not. . . authorize such lotteries if are not operated by bingo, state, or fall within the raffle or pari-mutuel exceptions." (emphasis on-track, Id. 58at added). legislature permit short, could the state (but state) only operate every casinos with form gambling. of casino Editorial, Legislature See Should Back Not Gambling, Sentinel, 7, 1990,
Milwaukee ("Hanaway Feb. at 10 getting it sides."); Pommer, from all Matt Doyle Says Hanaway Flip- flopped Times, Gambling, 29,1990, on The Capital June at 3-A. Ritsche, See supra, at. 10-11 (discussing the divergent interpretations by Hanaway offered Doyle). and Attorney Doyle
¶ said he his based 152. General Supreme "prior opinion of the Wisconsin on decisions history legislative of the 1955 criminal code Court, the Legislature has in which the and the manner revision 'lottery' proposing amendments to term treated the enacting legislation." 54. Id. at our constitution Attorney Doyle quoted from the General methodology interpreting three-part con- familiar substantially opinion provision, id., but his stitutional methodology disregarded to reach its conclusion. this Doyle opinion operated from the rea- (1) "lottery" premise the term in subsection sonable "lottery" iy the term Section of Article (6) Id. at 57 construed same. should be subsection (2nd (citing Nunez, F.2d States v. United Statutory 1978); Singer, Construc- 2A Sutherland Cir. 1984)). (Sands argued § 4th ed. It 46.06 n.6 tion (1) "lottery" all covered term in subsection because the (6) "lottery" gambling, must also the term subsection gambling. cover all *80 significant problems this were with 155. There (1), opinion focusing on In subsection
conclusion. history, meaning, purpose, take into account the did not provision interpretation concen- in 1848. It of the and interpretations of the term broad trated instead on adopted. many years provision "lottery" was after the According opinion: to the
(1)
continuously and
'lottery' has been
"The term
the three
by the courts to include
uniformly construed
Op.
and consideration."
prize,
chance
elements
cases).
(citing
at
Att'y Gen.
(2)
attorney gen-
prior opinions "Numerous
lottery
statute
...
found a violation
eral have
and
chance
prize,
the three elements
whenever
scheme." Id.
present
consideration were
(3)
"As stated
Supreme
Wisconsin
Court:
legislature,
courts,
'The
general
attorney
traditionally
have
taken a
games,
restrictive
view of
schemes,
and plans
involving
prize,
chance,
a
condemning them as
prohibited
consideration,
lotteries
by the constitution.'"
Id. at
(quoting Kay
den
55-56
724)
Indus. 34 Wis. 2d at
added).
(emphasis
reviewing
analysis,
¶ 156.
this
there is no dis
pute
lottery
"that
involves three elements. There
prize,
be
must
chance, and a consideration." State ex
rel.
La
Co.,
Cowie v. Crosse
153,
Theaters
Wis.
(1939).
forms. A one form Pari-mutuel betting gambling. on-track is another form of Roulette gambling. is a form of Each of these forms includes the prize, chance, elements of and consideration. But each unique of these forms has characteristics. It is no more logical say "lottery" that the term includes "roulette" say "pari- than to the term "roulette" includes betting." mutuel on-track carefully
¶ 158. When we examine the authorities Attorney Doyle's opinion, begin cited in General we can interpretation to understand how constitutional wan- dered off course. Attorney
¶ 159. In General Walter Owen was asked officials the Wisconsin State Fair they lapel together whether could sell buttons a with upon for admission, "ticket the back of which will be a lucky number. The holder of the number will win an (1916). Op. Att'y Overland automobile." 5 Gen. *81 Attorney General concluded that this scheme con- lottery §§ a stituted in violation of Wis. Stat. 4523 and
100 opinion reference to Article made no 382. His 4524. Id. at quoted iy He 24 Constitution. of the Wisconsin Section Cyclopedia of Law Lemann, M. Lotteries Monte from (William E Nash Mack & Howard Procedure lottery species gaming 1912), a which "a eds., may of prizes for the distribution as a scheme be defined paid, agreed among persons who have chance a pay, the chance obtain a valuable consideration added). (emphasis fair prize." Thus, the state Id. at 381 lottery lottery plan "State statute. a under constituted charged duty carrying agencies forward state with the prosecution adopt enterprises methods in the should not of criminal amount to violation work which their added). (emphasis at statutes." Id. Attorney opinion, John General In a 1920 containing gift coupons four on
Blaine commented separately could be drawn These numbers numbers. (1920). Op. Att'y prizes. Both Gen. awarded See coupons drawing of the and the of the the distribution newspaper. After a local orchestrated numbers were lottery quoted quoting in the definition of the same Attorney opinion, said: General money, without coupon If the is obtained without services, as rendering of or without consideration merely consideration, the return form of valuable some gratu- a distribution method for the constitutes a gift. itous here for the sale of a consideration
If there was consti- coupon, which receipt or for the chance might be chance, lottery perhaps tutes evidence shown. necessary for coupon, it is
If, in order receive might it be newspaper, in such case purchase one to lottery held a scheme. *82 Attorney
Id. at 11. General Blaine did not cite Article iy Section 24. opinion, Attorney
¶ 161. In a 1922 General Will- Morgan iam stated: "It unlawful to sell numbered general gift tickets for admission ... and make a free purchaser an automobile to the and owner of a ticket." (1922). Op. Att'y 11 Gen. 396 Then he added: "Whenever prizes given, prize being are winner determined being paid chance, and there a consideration for such antilottery chance, it is a violation of our laws." Id. added). (emphasis Attorney General's use of the word "whenever" this sentence without reference the limitations of either the statutes, constitution or represented broadening a substantial of the term "lot- tery." subsequent opinions, Op. Att'y Gen (1934) ("a 100,000 scheme to sell about tickets out twenty-three
of which will be drawn to receive $500 twenty-fourth $10,000"); Op. each to receive (bank (1937) Att'y night, involving Gen. 143 cards bearing entitling prize money numbers holders to if they purchase tickets); Op. Att'y also theater Gen. (1939) (a night); Op. modified form of bank and 28 (1939) (ticket Att'y dispenser Gen. 556 at movie theater periodically gives depending ticket refunds on how many sold), attorneys general tickets are concluded respective "lottery." each schemes was opinions, In most of the above-referenced respective attorney general pointed specific the lottery to a (1939). §
statute, such as Wis. Stat. 348.01
This
lottery statute was different from the statutes that
(Wis.
§
(1939)),
covered
devices
Stat.
348.07
(Wis.
betting
§
upon games
(1939)), gam-
Stat.
348.08
bling
speed,
power
skill,
contests of
orman
beast
(Wis.
(Wis.
§
(1939)), "policy"games
Stat. 348.085
Stat.
(Wis.
(bookmaking)
(1939)),
pool selling
§
348.171
(1939)).
Attorney
deficiency
§
One
Stat.
348.172
Doyle's opinion
that it failed to mention
was
General
general opinions
attorney
that discuss
the multitude
gambling
do
lotteries but
besides
other forms
"lottery."
the term
make reference to
*83
Doyle
Attorney
also cited four
¶ 164.
General
"lottery"
support
proposition
term
that the
to
the
cases
uniformly
"continuously
the
construed
has been
prize,
chance
to include the three elements
courts
(citing
Op. Att'y
at 55
Gen.
and consideration."
Kayden
Laven,
Indus.,
718;
270 Wis.
34 Wis. 2d
State v.
(1955);
Regez Blumer,
rel.
v.
State ex
524, 71 N.W.2d287
(1940);
and La Crosse
236 Wis.
294 N.W.
153). Curiously,
opinion
Theaters,
omitted
the
232 Wis.
Trampe Multerer,
v.
289 N.W.
ex
Wis.
State
rel.
(1940).
bank
case involved
165. The La Crosse Theaters
sought
enjoin
nights
to
the
at a theater. The State
ground
night
practice
a bank
a
on the
that
as nuisance
night
lottery.
argued that a bank
defendant
was a
disagreed,
lottery.
a
court
stat-
did not
This
constitute
ing
lottery
There must
three elements.
"that a
involves
prize,
a
La Crosse
a
chance and
consideration."
be
going to a
Theaters,
It
that
ting gambling conducting bingo house and from on premises. Multerer, at 234 Wis. 51. The citizen openly using premises accused the defendants of their carry game bingo on the "or similar and other premises of chance," and contended that gambling [and] constituted "a common resort; great persons premises numbers of resorted to said purpose gambling." the acknowledged Id. The defendants public their halls "had rented been religious, organiza- charitable, to various and fraternal *84 played bingo proceeds tions who had and used the for religious, purposes." (citing charitable, and fraternal Id. (1939)). § Wis. Stat. 348.07 The circuit court concluded bingo game" gambling was "a the citizen injunction. was entitled to an appeal, ¶ 168. On the defendants contended that "bingo gambling played upon was not as it was the premises." they defendants' Id. at 55. But conceded 'gamble' sufficiently "that the term is broad to embrace game bingo played money prizes the purposes of if for for raising money
other than those for chari- patriotic purposes." table or responded: Id. at 55-56. The court bingo, played We have no doubt that as about a year upon premises, gambling defendants' was a lottery involves three lottery. [A] a ... and was game chance, and a consid- prize, There must be a elements. bingo obviously was playing ... there In the eration. bingo Clearly, played upon as .. a consideration. in lottery, and was violation played was a premises 348.01, Stats. this state. Sec. the statutes of added). (emphasis Id. at 56 language above-quoted sus- 169. None plowed pect. 24, art. of our the court on: "Sec. But IX legislature provides: never au- 'The shall constitution strong any lottery.' declaration That is thorize public policy "If or its munici- legislature state." Id. a state of this may palities its not be authorized gambling benefit, their it and lotteries for conduct religious organizations or charitable clear that seems authorized, in face of a constitu- could not be so provision like Id. at 58. tional ours." the court did 170. What Multerer —for prohib- that the constitution time—was to assert "gambling," first than term which is much broader ited "lottery." its total failure to notable for decision is proper methodology apply any consider we now provision interpreting to discern a constitutional people adopted who of the framers and the intent provision. attorneys gen- decision,
¶ 171. After the Multerer interpretation of to in- lotteries eral their broadened e.g., Op. Att'y gambling. See, Gen. 181 clude other (1943) (coin-in-the-slot gambling games and devices of design type, pinball, as as well slot machine or similar prohibited bingo, Article Section are lotteries IX Multerer). surprising citing when this Thus, it was not (1967) Kayden "The that: Industries *85 court stated attorney general legislature, of courts, and the traditionally view of taken a restrictive have Wisconsin games, plans involving prize, schemes, and chance, and condemning prohibited consideration, them as lotteries Kayden Indus., the constitution." at Wis. 2d added). (emphasis Attorney Doyle's opinion
¶ 172. General used this quotation analysis as the central tenet of its original though Article Section even none of the IY attorney general opinions leading court decisions or provided analysis this statement had ever a serious meaning or intent of the constitutional text. This Tottery equals gambling" same mistaken mindset of all upon Kayden prompted —based cases like Industries — Legislative repeatedly Reference Bureau to draft gambling exceptions constitutional on amendments as prohibition to the on lotteries Article Section 24. IY again, lottery 173. Once while it is true that a requires prize, the elements chance, and consider- every game involving prize, ation, it is not true that lottery. lottery gam- chance, and consideration is A bling, gambling lottery, but not all is a because lotteries species larger gambling. are but one in the class Having "lottery" concluded that the term (1) gam- subsection of Article Section 24 covered all IY bling, Attorney Doyle's opinion General set out to render interpretation "lottery" a consistent of the term in sub- (6). (6), "lottery" section In subsection however, term language "specific was surrounded other such as lottery "winning "promotional ticket," ticket," advertis- ing," specific lottery [being] and "the odds ticket winning selected as the ticket." opinion ¶ 175. The tackled the "ticket" dilemma as follows: do
[I not] view use the word "ticket" in the third limiting lottery sentence ... as *86 determining the as a method a ticket employing "a of ticket is ordinary definition The plain, winner. notice, engraved or written, stamped, typed, printed, memorandum, Third New or token." Webster's record, (1986). defini- Under this Dictionary 2389 International lottery in a tion, participation a ticket is evidence the ticket be require that ticket does not game. The word game or selection way play in the in used some meaning of the word plain .... Under the the winner above, note, or token document forth a "ticket" as set participate permit as a writing serves which meaning a ticket within serve as game would specific provision. constitutional of the currently three such operates Lottery Board game television The instant involving tickets. games the amount to determine not use the ticket show does A ticket is show. on the television prizes awarded in the show. participants to determine used are memoranda tickets Megabucks SuperCash are ulti- The winners player. numbers selected of numbered by mechanical selection mately determined balls. added). (emphasis at 58-59 Att'y Gen. Op. games particular rationale covered 176. This
¶ covered the It even Lottery. the Wisconsin conducted horse or a particular a bet on evidence of pari-mutuel a person's did not explain race. But it dog specific It did a roulette table. machine or at a slot with play cards. tickets and try equate requirement The constitutional a specific will win odds" that person "the State provide such non-lottery when lottery game, applied with away explained simply was poker, as roulette lottery of some "implementation the comment games [will more be] [for difficult the State Lottery] than others." Id. at 58.21 178. The 1991 Attorney General's did opinion
not examine the 1987 amendment
in its historical
context, and it did not discuss its legislative intent.
Attorney General
had
Hanaway
asserted that there was
*87
no evidence that
the framers of the
amendment
the
who
people
adopted it ever intended to authorize casino
gambling.
the real adopted substantial of those who it. 22In Legislative 1992 the Reference prepared Bureau an legal extensive discussing memorandum Article Section IX Hanaway Doyle and the opinions. Memorandum See from Stern, (Feb. Barry 1992) J. Legis. Att'y, to Sen. Michael Ellis (on Bureau) file Legislative with the Reference (regarding 469"). "Constitutionality of 1991 Assembly Bill The memoran argued dum meaning that the of the term "lottery" in Section 24(6) 24(1). is different meaning from the of the term in Section It Attorney Doyle's defended General interpretation "lottery" (1), in subsection citing the same cases in Doyle cited the opinion, disagreed (6). but with the interpretation of subsection The memorandum stated: Doyle opinion appears The given to have substantial
weight... presumption "lottery" to the thing means the same 24(6) 24(1). analyzed in s. ways as it does in s. It that the "ticket" between relationship of the opinion no discussion and the on-track pari-mutuel amendment lottery day. lottery the same adopted amendment betting authority the legislature gave amendment purportedly "casino-type to conduct Lottery the State to permit activities besides tradi- other gaming as well as games" But Gen. at 58. Att'y lotteries. 80 Op. tional specifically amendment betting on-track pari-mutuel 24(6) "lottery" any to language if in s. refers could make sense including casino-type gambling, gambling, but did not form of contrary. any arguments It did not examine consider relating legislative history contemporary news accounts of or 24(6), question approval submitted to of s. the referendum history relating legislative to the April the voters in 1987 or Instead, language in ch. it identified certain enactment of ch. 565, arguably supports that, of ch. in isolation from the rest 24(6) "lottery" mean form of in s. a construction gambling. fairly state court would not I am certain that a Wisconsin construing "lottery" reasoning Doyleopinion accept 24(6). Doyle opinion meaning approach in the taken s. The literal *88 by that, my knowledge, taken approach has never been is an construing provision. in a ... constitutional Wisconsin state court memorandum, meaning previously the literal discussed this As by construing rarely a consti- approach a court ... followed provision. tutional history relating approval examining legislative to the In 24(6) 565, the court would be enactment of ch. of s. and the drafting documents expected LRB files and other to examine the relating provi- agencies prepared by legislative to those service drafting is no mention and there sions. I have examined those files any gambling anything casino-type or related to in either of file of any operate legislature the state to intent to authorize form for being specific gambling gambling that was than the other form of of and that involves sale various other states conducted of through winning lottery tickets draw- and the selection of tickets ings or another method of chance. added). 10-11, Id. at (emphasis 12-13 provided may operate any that, "The state or own facility enterprise pari-mutuel betting, for or lease any operator state-owned land to other owner or 24(5) (1987). purposes." IV, such Article Section It is provisions. Why hard to reconcile these would the ratify operation voters state of casinos and slot ma- prohibit operation pari-mutuel chines but state on- betting? track my Attorney Doyle's opin- view, General grounded premise
ion was on a mistaken about (1), effect of subsection followed a mistaken and (6) interpretation tortured of subsection it so (1). interpretation coincided with subsection His (6) disregarded setting subsection historical and the people adopted intent of the framers and the who it. THE IV UNITED STATES DISTRICT DE- COURT'S THE
CISION IN LAC DU FLAMBEAU CASE Attorney Doyle's opinion General contained a footnote that "The State of Wisconsin is currently involving in a defendant lawsuit the issue of gambling subject nego activities which must be tiations between the state and Indian tribes under Gaming Regulatory Att'y Op. Indian Act." 80 Gen. at 54 n.l. The lawsuit referred to was Lac du Band Flambeau Superior Chippewa Lake Indians v. State Wiscon (W.D. 1991). Supp. sin, 770 F. Wis. This landmark requiring negoti case resulted in an order the state to ate Indian casino Wisconsin.23 ¶ 181. The United States District Court ordered negotiate Wisconsin to *89 over all forms of III Class Ritsche, supra, See at 20-21. Act Indian Gaming Regulatory under gaming § The court stated: (IGRA), 25 U.S.C. 2701. required whether state is parties dispute games and slot machines games, video
include casino I it is the tribes. conclude that negotiations with its they because are negotiate those activities required meaning of within the under Wisconsin law permitted 2710(d)(1)(B). § 25 U.S.C. Flambeau, F. at 482. du Supp.
Lac view, represented this conclusion my The critical provi- of IGRA. misreading fundamental as follows: sion of IGRA reads (d) activities; authorization; revo- gaming III Class cation; compact Tribal-State
(1) III be lawful on gaming activities shall Class only such activities are— Indian lands if (A) Tribal] ordinance or resolu- [a authorized . . . tion (B) permits in a State that such located entity, or
any purpose by any person, organization,
(C) a Tribal-State in conformance with conducted and the State entered into the Indian tribe compact (3) that is in effect. paragraph under added). 2710(d)(l)(A)-(C) (emphasis § 25 U.S.C. Flambeau, that, argued the State In Lac du Constitution, casino of the Wisconsin irrespective were not per- and slot machines games, video games, by any person, organization, for any purpose mitted bargain was not required and thus Wisconsin entity, the court: According to games. over these Congress "permits" meant position Defendants' dictionary meaning formally or given to be its usual *90 leave; therefore, granting a expressly unless state grants expressly playing particular leave for the of a state, type gaming activity activity that within cannot be lawful on Indian lands. Supp. Flambeau,
Lac du 770 F. at 484-85. The court disagreed, pointing "per- to alternative definitions namely "acquiesce." mits," to "allow"or to "let" or to significant, however, 184. More court adopted Supreme analysis the United States Court's in Indians, v. Cabazon Band Mission 480 U.S. California (1987), Congress drafting [it said] "onwhich relied in Regulatory Gaming [sic]." the Indian Act Lac du Flam- Supp. beau, said, 770 F. at 485. It noted that "a Cabazon analyze policy gambling" court must the state's toward apply determine whether state's criminal laws would gambling By embracing ap- on Indian Id. lands. this judicial proach, balancing the court substituted for the criteria set in out IGRA. The court said:
The question determining initial whether Wisconsin gaming "permits" the activities at issue is not whether given express approval playing the state has to the of a particular game, public policy but whether Wisconsin's gaming regulatory. toward Class III or prohibitory is Id. at 486. The court concluded: "The amendments to policy the Wisconsin Constitution evidence state regulatory toward prohibitory is now rather than [Wisconsin] "I nature. Id. conclude that required negotiate [casino games] they because are permitted meaning under Wisconsin law within the 2710(d)(1)(B)." added). § (emphasis 25 U.S.C. Id. at 482 reaching conclusion, this the court heavily Attorney Doyle's opinion. leaned Utilizing on General opinion's analysis, truncated historical court stated: original provided Constitution Wisconsin section, legislature provided this
"[e]xcept as any lottery, grant or divorce." never authorize shall against "any century, prohibition more than a this For or lottery" interpreted prohibiting operation as was involving the any game, plan playing of scheme chance and consideration. prize, elements *91 added).24 Id. at 486 (emphasis The court added: 186. ¶ state-operated "lot- When the voters authorized they any remaining pro- constitutional tery," removed games, against state-operated schemes hibition consideration, involving with prize, chance plans 10-91, Op. Att'y slip Gen. Wis. exceptions. minor See ("Under constitution, Legisla- op. [state] at 5 lottery operated of state may type ture authorize advertising, subject only to the use-of-revenue restrictions."). wagering off-track to the Wisconsin Constitution The amendments gaming that is now policy evidence a state toward [Cali- See regulatory prohibitory rather than nature. Indians, Mission 480 U.S. v. Cabazon Band of fornia (1987)] to .... The fact that Wisconsin continues gaming gambling and unlicensed prohibit commercial policy prohibitory. make its activities does not Id. at 486-87. Attorney Doyle's The court used General about argument to rebut the State's again
opinion different activities: among distinctions distinguishing authority no for Defendants offer lottery games and the the State's current between accurately the 1848 consti passages quote do not These history judicial accurately report the they tution and do not interpretation. game] proposed negotiation by
[casino activities tribes. Instead the state makes the bald statement that wholly casino "are of a different character than a lottery state pari-mutuel wagering." or on-track Defen- reply dants' attorney brief at 17. The state's current general rejected imposition has of artificial distinc- lottery, long tions within the term so activity as the prize, involves elements of chance and consider- ation and explicitly by is not addressed the constitu- tional Op. Att'y 10-91, amendments. slip op. Gen. Wis. at 5-7. I find no impose similarly reason to artificial categories applying the Cabazon test and in inter- preting Gaming Regulatory the Indian Act.
Id. at 487. In sum, the court used Attorney General
Doyle's opinion conclude that Wisconsin had given green light nearly comprehensive gambling activity operated by state, thereby moving from a prohibi- tory to a regulatory result, As a policy. said, court Wisconsin required was all III negotiate Class gam- *92 ing with its tribes.25 189. The State appealed
¶
district court's de-
cision, but the Seventh Circuit Court of Appeals refused
to review the merits of the action because the State
failed to file a timely notice of appeal. Lac du Flambeau
Band
Lake Superior
Indians v.
Chippewa
State
of
of
(7th
Wisconsin,
to vacate the The Circuit said: Seventh dismissed. regret visiting the of effects counsel's
Much as we bearing a case on its error on the State Wisconsin the current version Rule governmental powers, 4(a)(4) A timely appeal no notice leaves alternative. The jurisdiction. this notice court's is essential filed is The is dismissed appeal defendants ineffective. jurisdiction. for want of at
Id.
¶ after the Seventh Circuit 190. Four months eight appeal, State's members of dismissed the petition legislature an to commence filed Wisconsin original Wisconsin, Leann v. action this court. 1993). (Jan. 20, This 16, No. 92-1861-OA Wise. LEXIS presented grounds petition it on court denied the justiciable controversy. Id. at Three members of *2. no Day, Bablitch, Wilcox, would court, Justices up the matter clear the confusion sur- have heard "lottery." rounding meaning Id. at *8-9 of the word (Bablitch, dissenting). refused. J., others decisions, the a result of these district 191. As holding reviewed. Not and order were never court's Doyle openly court did a Wisconsin until Panzer v. question rul- of the Lac du Flambeau the correctness majority ing. Panzer, 2d 92. Now that 271 Wis. necessary adopts Flambeau, it is this Lac du court why ruling was the court's revisit the decision show wrong.26 final A Court is not the arbiter United States District *93 25, 1997, February a state In a meaning constitution. Vrakas, Attorney Gen Representative to Daniel E
letter State Doyle that: eral wrote statutory IGRA, Under test for deter-
mining required negotiate whether a state is particular gaming activity III Class with Indian tribes is "permits gaming any whether the pur- state such pose by any person, organization, entity." 25 U.S.C. 2710(d)(1)(B). § rejected The district court a narrow interpretation "permits," rejected any is, it requirement activity by for formal authorization of an beyond the state. But the court went well that inter- pretation by construing phrase gaming" "such 2710(d)(1)(B) § gaming to refer to all "Class III activi- 2710(d)(1). §in ties" permitted Thus, in the view, court's if a state (like any gaming activity
or allowed Class III lottery), required negotiate a state it gaming was all activities within Class III. There are several reasons why this conclusion was erroneous. phrase gaming" First, "such refers back gaming § 2710(d)(1), "Class III activities," 25 U.S.C. gaming."
not III gaming" "Class The term III "Class 2703(8). § defined in 25 gaming" U.S.C. "Class III is a very encompasses broad term that an entire class of gaming up under everything statute, made that is By phrase two other classes. contrast, the "Class III enough activities" is elastic to cover Judge only parties Crabb's particular decision binds the to the action in only which it was issued. The effect of the decision was to parties direct the negotiations to that case to enter into for a compact However, at that clear, time. it did make under the law as Judge it existed in how Crabb would have ruled similar cases. opinion, As a mandatory district court precedential it has no effect over future cases in Any that or other court. new cases regarding negotiation compacts, parties, even between the same would arise under a changed new fact legal situation and in a environment, and specifically by thus not be prior directed decision. *94 gaming part specific activities within Class of the all or activity Clearly, gaming "a" III describes one III. Class gaming that class. activities within only gaming III activities are lawful 194. Class they instance, meet conditions. For "Class when certain only gaming shall be on Indian lands III activities lawful (A) by a are Tribal ordi- if such activities" authorized (C) nance or resolution and "conducted conformance compact by a entered into the Indian with Tribal-State (3)." paragraph Significantly, under tribe and State (3) gaming activity," paragraph "a III a refers to Class larger addition, statute class. subset contemplates com- ordinances and tribal-state tribal gam- enumerating specific pacts III one or more Class ing a activities have been authorized tribe that negotiated a would make no sense with state. It and/or gaming negotiate III either a tribe or a state to Class party neither would able as a whole because be might someday everything predict fall that that within (B) subparagraph exceptionally Likewise, class. broad gaming" only "such refers makes sense when term specific gaming permitted activities to one or more the state. history logic con- Second, dictate this permitted A certain Class of states
struction. number (like lottery, pari- state-operated gaming III activities alai) jai long betting, machines, or mutuel slot before states acted before was enacted 1988. These IGRA gaming" statutory III classification—"Class —even interpretation of the Thus, district court's existed. if have correct, were each of states would statute these required involuntarily—to negotiate casino all been — irrespective any borders, with tribe within its (To games. permitted of these whether state theory, permitted if a court's state illustrate district (and alai) jai only jai or allowed alai it IGRA, before required negotiate pari-mutuel have would been betting, gaming machines, slot and casino after IGRA law.) passes suppose became belief It members Congress previously approved from a state had single activity now classified as a III Class gaming activity, legislation would have voted for federal *95 gaming that blew the off doors Indian and transferred police power sovereign- much of so their state's to other thing argue opens ties. It is one to that a state that particular gaming activity a door negotiate crack to must activity that with all its tribes. See Mashan Pequot Connecticut, tucket Tribe v. F.2d 1024, 1026, (2nd 1990). quite thing argue Cir. It is another opening up gaming activity opens the door to one gaming the doors to all activities. legislative
¶ 196. Third, is in intent also revealed legislative history. IGRA's On June Senator appeared John McCain of Arizona before the House hearing Committee on Interior and Insular Affairs for a on IGRA. Senator McCain said: gaming
[W]hen we talk about spreading all over this country, forget let's not that no will be tribe allowed to gaming have operations which exceed which is already allowed in the State.
So, let's not paint picture, say let's not casinos are going up Nation; all spring they over this are not. to. gaming No will be allowed which exceeds the which is allowed non-Indians in that State. Gaming Regydatory Hearing
Indian Act: on H.R. 964 Comm, and H.R. 2507 on Interior and Before (1987). Cong. Insular Affairs, 100th ¶ 197. Committee Chairman Morris K. Udall agreed: things basic that one pointed Mr. out McCain this, in involved bill, long as as we have been our get any better treatment going are not
that Indians get good as else, they going but are anybody than else, you j'ai alai anybody and if have treatment as California, can have you parlors and whatnot poker Indian] [an reservation j'ai poker parlors alai and else. wherever
Id. at 178. were IGRA assumptions 198. These basic about witnesses, including representatives
echoed other (statement at See id. Administration. Reagan (statement (D-Nev.)); id. at 208 Bilbray H. James Rep. Gen., Att'y Assistant Toensing, Deputy of Victoria Justice); at 222 id. Div., United States Dep't Criminal (statement Secretary Swimmer, O. Assistant of Ross Affairs, Indian United States Affairs, Bureau of Indian Interior). S. 555 Hearings Senate on See also Dep't Comm, Indian Affairs, on Select and S. 1303 Before (statement *96 (1987) Peter V of Sen. Cong. 100th Dominici). on Senate Report Committee Senate Indian Gaming became the ultimately
Bill which Act, Congress recognized: explained Regulatory public fashion a means which different the need to governmental entities respective policies of these and recon- can accommodated states] and be [tribes a legislation provide is to means intended ciled. This their can realize governments and State which tribal objectives, while governmental unique and individual regulatory time, develop a together work to at same consistency a pattern that will jurisdictional and foster regulating in the manner in which laws uniformity and applied. are gaming activities the conduct added). 100-446, at 6 (emphasis S. No. Rep. language guid- ¶ 200. This is not as direct in its might recognizes desirability be, ance "consistency it it as but uniformity" gaming regulation
and as right governmental protect well as the of a state to its objectives. although permits Thus, IGRA a state to negotiate grants compact a tribes exclusive author- ity engage gaming to in certain Class III activities, the required give right engage state is its tribes the gaming prohibits in these III Class activities it when everyone Congress these activities to else. established a gaming activity clear rule that a Class III is lawful on only activity Indian lands if the is located in a state that permits activity any purpose by any person, "for organization, entity" only activity or and if the compact. conducted conformance with Tribal-State Significantly, strips ¶ 201. IGRA federal courts of authority subjective their to make evaluations that gaming policy regulatory characterize a state's as prohibitory. report The Committee states: expressly preempt
S. is intended to the field in governance gaming on Indian activities lands. Consequently, Federal courts compet- should not balance Federal, State, ing tribal interests to determine the extent to which various are activities allowed. added). Rep. (emphasis S. No. 100-446, at 6 report ¶ 202. The went on: anticipates [T]he Committee that Federal will courts rely on the distinction between State criminal laws prohibit which certain civil of a activities laws impose regulatory State which scheme upon those activities determine whether II class are allowed in certain . . States. . The Committee wishes to *97 application that, make clear under S. of prohibitorylregulatory markedly distinction is different application the distinction in the context from Here, the Cabazon]. applied [as Law 83-280 Public a State's the distinction between consider courts will body whether a laws to determine and criminal civil law, to of Federal either as matter applicable, law is or certain activities. prohibit allow added).27 (emphasis Id. ruling in Caba- modifies the 203. This statement Admittedly, references "class II the statement
zon. analysis. games," On the but this does undermine depend upon contrary, gaming a com- II does not Class activity gaming pact. right II is A to a Class tribe's permits gaming by state whether the determined activity organization, any purpose by person, "for 2710(b)(1)(A). § Consequently, entity." when a gaming 25 U.S.C. dispute a certain Class II arises over whether activity land, the answer does not is lawful on Indian activity agreed depend to that the state has on whether way. depends whether the on a formal answer prohibit that laws that activ- has enacted criminal state applicable ity everyone. more This new rule even gaming III activities. Class original understanding from of IGRA 204. The today by Indian affirmed National
1987-88 is
Gaming Regulatory
Gaming
"Indian
Commission.
its
Overview," the Commission states:
Act
language. Lac du Flam-
very
this
The district court cited
Nevertheless,
court
beau,
the district
Supp.
770 F.
at 485.
distinction from
prohibitory/regulatory
applied the
inexplicably
Indians,
The Regulatory Indian enacted in as Public Law 100-497 now codified at 25 § jurisdictional U.S.C. establishes the framework governs presently gaming. that Indian The gaming definition of class III extremely is broad. It all gaming includes forms of are that neither casinos, I nor commonly played class II. Games at such machines, jack, as craps, roulette, slot black would clearly fall category, in the III wagering class as aswell games and of any game electronic facsimiles of chance. Generally, III class is often referred casino-style a[s] gaming. compromise, As a the Act restricts Tribal au- thority to conduct gaming. class III may
Before a
lawfully
Tribe
conduct class III
gaming,
(1)
the following conditions must be met:
The
particular
gaming
III
class
that the Tribe wants
form of
to conduct
be permitted
must
in the
state which the
(2)
located;
tribe
The Tribe and the state must have
negotiated
compact
approved by
has been
Secretary
Interior,
Secretary
or the
must have
(3)
approved regulatory procedures; and
The Tribe
adopted
must have
Tribal
ordinance that has
approved by
been
the Chairman of the Commission.
See National
Commission,
Indian Gaming
Indian Gam-
ing
Overview,
Regulatory Act
http://www.nigc.gov/laws/
(last
2006)
March
igra/overview.jsp
visited
(emphasis
added). The phrase
form of
"particular
class III gaming"
decimates the Lac du
ruling.
Flambeau
back,
205. Looking
district court was incor-
rect
every
almost
It
respect.
misread Wisconsin
constitutional
and it
history
IGRA, first,
misinterpreted
in a
engaging
balancing interpretation
that wrongly
characterized Wisconsin's climate toward Class III gam-
ing as
rather
than
regulatory
prohibitory, even though
all casino
criminal stat-
games by
prohibited
Wisconsin
if
and,
concluding
per-
Wisconsin
ute;
second, by
III
it was
gaming,
required
Class
mitted
III gaming.
all Class
negotiate
has been
court's interpretation
district
Yavapai-Prescott
*99
other federal courts.28
rejected
(D.
Arizona,
v.
1292,
F.
1296
Indian Tribe
796
Supp
the Lac du Flambeau
"ruling
1992), the court said
Ariz.
district
far." It
a
quoted
the mark
went too
missed
Lac
du
"frankly,
as
Washington
saying,
court
seems overbroad." Id.
at 1296 n.13
Flambeau
analysis
States,
Indians v. United
Tribe
782
(quoting Spokane
of
1991)).
(E.D.
n.2
520,
F.
522
Wash.
Supp.
addition,
it
be noted that
should
handed down an impor-
Court
Supreme
United States
v.
decision in Seminole Tribe
immunity
tant sovereign
(1996).
Florida,
case,
44,
In that
the Court
517 U.S.
47
28
Wintun Indians v.
Rumsey Indian Rancheria
See
(9th
amended,
Wilson,
1994),
E3d 1250
421, 427
Cir.
64
41 F.3d
("IGRA
(9th
1996)
(9th
1995)
does not
and
V THE LEGISLATIVE RESPONSE TO THE LAC DU FLAMBEAU DECISION ¶ 208. The Lac du Flambeau decision was issued on June 1991. The "REQUIRED" Court's order State "to conclude tribal-state III Class com- (60) pact" plaintiff sixty days with the two tribes "within from the date Flambeau, of this Lac order." du 770 E Supp. By Tommy at 488. June 1992 Governor G. Thompson negotiated compacts had with all *100 federally recognized compacts State's tribes.29 These (1) games authorized electronic of chance with video (2) displays; facsimile electronic of chance with (3) (4) displays; blackjack; pull-tabs mechanical and break-open played tickets when not at the same loca- bingo played. Panzer, tion where See 271 295, Wis. 2d compacts ¶ expire 25. These 11 were scheduled to years they effect, seven after each took but could be and extended amended. concluding paragraphs 209. One of the of the opinion
district court's stated: I conclude that required the state is to negotiate plaintiffs with over the in a inclusion tribal-state com- pact any activity prize, that includes an element of history For description and compacts, Ritsche, see supra, at 22-28. prohibited and is not that and consideration
chance state law. Constitution or by the Wisconsin expressly added). (emphasis Supp. Flambeau, F. at 488 du Lac legislature language and in the noted was The court's may response legislative to influenced the have Henkel, R. Memorandum from Jane See decision. Lynn Legislative Deputy Council, Sen. Dir. of the 1992) (hereinafter (Feb. 26, Adelman Memorandum); Henkel/Adelman Jane R. Henkel from and Memorandum 1992) (hereinafter (June Rep. David Travis Memorandum) (both file with the on Henkel/Travis Wisconsin). Legislative Council, Madison, Wisconsin Thompson April an- 2, 1992, Governor 210. On legislature special into he call the would nounced April limit all that would vote on "a bill on session gambling." Th- Release, Governor casino Press forms 1992) Gambling (Apr. Special ompson Session Calls (on Legislative Madison, Bureau, Reference file with Wisconsin). date, that, as of that stated The news release April compacts. only On did not have three tribes Thompson news release another issued Governor stated: Attorney Gen- Tommy Thompson G.
Governor agreement a bill Doyle on have reached eral James the bill will consider limiting gambling. legislature tomorrow. session special is one legislature tomorrow "The before the bill I Gover- Attorney support," General that both the gambling to limit "This bill will Thompson nor said. they when intended exactly what Wisconsin voters lottery...." approved a state *101 narrowly define bill, agreed upon, as will The including only types gambling lottery to a form of Lottery pro- by the currently offered State gambling. hibit casino
125 It prohibit legislature authorizing will from gambling expanded approved by has been voters in statewide referendum and will not affect gambling Indian compacts agreed days to within 30 after bill takes effect. Governor, Release,
News General Attorney on Agree 1992) (on Bill Gambling 13, file (Apr. with the Legisla- Wisconsin). tive Bureau, Reference Madison, 211. Governor Thompson's bills, companion April Special Session Senate Bill 1 and April Special Assembly 1, Session Bill did not pass, but April 1992 Special Session Assembly 6, Bill introduced in was May, approved.30 Analysis written Legisla- tive Reference Bureau explained that:
30During consideration of April Special Session As sembly legislature Bill approved an amendment offered by Senator Tim "Advisory Weeden entitled Referendum on Additional Gambling." Forms of The provided: amendment After the effective date of this section ... neither house of the legislature may pass any bill that authorizes conduct of game specified 565.01(6m)(b), stats., unless, prior in s. to the
passage during legislative session, of that bill and the same all of following occur: (1) requiring advisory A bill a statewide referendum on the question legislature of whether the should authorize the conduct game of such a has been enacted. (2) (1) advisory required referendum under sub. has been held. drafting See file for April Session, Wis. A.B. Special on Legislative file with the Bureau, Madison, Reference Wisconsin. This amendment is § now codified as Wis. Stat. 565.015. This adopted statute was before the 1993 constitutional amendment legislature when the theoretically authority had grant Lottery either the State right the tribes the to conduct gambling." "additional forms of *102 provisions the of the bill provides ] bill [ The conducting casino-type from prohibit the state which any Indian provisions not the impair shall the by into an Indian tribe and entered gaming compact days date that after the date before the is governor Indian becomes law. Under the federal on which bill act, game may be regulatory casino-type gaming in by an Indian tribe on tribal lands lawfully conducted activity permitted to be con- only if that is Wisconsin by any person, organization other ducted Wisconsin by casino-type game if is conducted entity and or compact with a tribal-state the tribe conformance (gover- by the and the state is entered into tribe nor) secretary the federal approved the interior. department of ultimately exception written into Wis. 212. The 565.01(6m)(c) § reads: "This subsection shall Stat. compact any provisions of Indian affect January 1993, s. 14.035." 1, under entered into before exception brevity because, notable several of this Assembly Special April Bill earlier, Session weeks Assembly Organi- on 3, the Committee introduced exception that read: "This an zation, had contained provisions Indian shall not affect subsection gaming compact date into the effective entered before including any paragraph 14.035, . .. under s. of this compact relating extension, provisions to the in the (Emphasis compact." renegotiation renewal added.) Assembly adopted May 1992, Assem- 5, On striking "renegotia- bly out Amendment to the bill approved aon voice vote amendment was tion." The reject had the amendment after efforts to table Assembly adopted Assembly Amend- then failed. The everything striking "s. 14.035." after 2, 56 to ment 565.01(6m)(c) § language ahas Wis. Stat. Hence, meaningful history.31 drafting See file for Wis. A.B. April Special Legislative Session, on file with the Bureau, Madison, Reference Wisconsin. Thompson 17, 1992, 213. On June Governor calling special
issued an executive order a second ses- *103 relating sion to consider a constitutional amendment lottery distinguishing prohibited gam- the State from bling, limiting "lottery,"prohibiting lottery expansion to games, removing gambling other from the section language prohibiting legis- of the constitution the granting lature from individual divorces.32 proposed ¶ 214. The amendment, Governor's Special Assembly June 1992 Session Joint 1 Resolution (1991 27)33 Enrolled Joint Resolution made no refer- Legislative ence to Indian in its text or in its analysis. Reference Bureau approved, ¶ 215. After his amendment was Gov- Thompson complimenting ernor issued a release news legislature. Thompson Governor stated: begins This process making amendment a per- manent, change constitutional gambling limit 31Assembly Amendment Republican was introduced Representatives Welch and An amendment, Loucks. identical Assembly Amendment was introduced Democratic Repre Rohan, sentatives Holperin, Young, Reynolds, and Black. See drafting 3, April Special Session, file for Wis. A.B. on file Legislative Bureau, Madison, with the Reference Wisconsin. 32A coalition of the majority the state's Indian tribes amendment, opposed offering give signifi "a Wisconsin cant share of future casino revenues" if the pro amendment posal dropped. Ritsche, was supra, at 11-12. Lynn Senator joint Adelman authored two similar reso lutions earlier in the session. 1991 S.J.R. 73 and 1991 S.J.R. 93. joint The Adelman resolutions made no reference to Indian gaming. thought they citizens to the level Wisconsin
Wisconsin time, voted people At that in 1987. approved gam- betting and not casino lottery parimutuel their wishes to ensure that responsibility It is bling. our upheld[.] are Thompson, Tommy Gover- G. Release, Governor
News Limiting Gambling Legislature Compliments On nor 1992) (on (June Legislative Reference file with Wisconsin). Madison, Bureau, up legislature Early took in 1993 the proposed constitutional consideration second restricting gambling. S.J.R. See 1993 amendment 3). (1993 Again, text of Joint Resolution Enrolled analysis amendment and the amendment gaming. Indian no reference to made original Senate Joint draft, 1993 its question proposed entitled: "No a ballot Resolution expansion lottery." *104 in the was amended This state of "Clarify innocuously question entitled: to a Senate against gambling." prohibition bipartisan group Assembly, of a In the 218. Schneider, (Representatives legislators Freese, Stower, Brancel) pointed alternative offered Ward, and Welch, people. adopted presented question to the and that was question read: The new Shall
Question Gambling expansion prohibited. 1: clarify be revised IV the constitution article bingo, gambling prohibited except are all forms betting the current raffles, pari-mutuel on-track not that the state will lottery to assure state-run gambling part as prohibited forms conduct lottery? state-run Rep- adopted, was Before this amendment Krug an offered Schneider, Freese, and
resentatives gaming" amendment to insert the words "Indian into exceptions question. the list of in the This amendment Representative was tabled without a vote. Then modify Schneider offered second amendment to question by inserting phrase gambling "forms gaming compacts" allowed under current state-tribal exceptions. rejected into the list This amendment was Assembly a vote of to63 April proposed ¶ 220. On 6, 1993, the constitu- restricting gaming tional amendment in Wisconsin was approved by people, 623,987 435,180. On the day, people advisory same voted on five referenda gambling. related to One of these referenda asked: "Do you favor a constitutional amendment that would re- gambling advisory strict casinos this state?" This approved referendum was 646,827 416,722. VI. INTERPRETING ARTICLE IV SECTION AS AMENDED IN 1993 principal ¶ 221. The issue in this case is whether gambling the 1993 constitutional on amendment af- compacts negotiated fected the with Wisconsin's Indian presented requires tribes in 1991-92.34The issue interpret we the amendment. ¶ 222. Article Section after the IV part
amendment, reads as follows:
(1) Except provided section, as in this legisla- may ture gambling authorize form.
(6) (a) legislature The may authorize the of creation lottery by a to be operated provided by the state as law. See Ritsche, supra, at 11-12 (discussing history the of the amendment). or of revenues derived public funds expenditure The ad- lottery engage promotional operations to from lottery prohibited. state is vertising of the Wisconsin lottery indicate the Any advertising of the state shall lottery to be selected as the specific of a ticket odds net for amount offered. The winning prize ticket each deposited in the lottery the state shall be proceeds of state, for tax relief property of the to be used treasury provided by as law. The residents of this state for may lottery proceeds the net of the state distribution age person or of the vary based on the income not tax relief. The distribution of the provided property the subject lottery shall be proceeds net state 1 of article VIII. uniformity requirement section the proceeds of the net paragraph, In this the distribution any earnings on net lottery include the of the state shall lottery. proceeds of the state (b) (a) an lottery par. under shall be authorized by purchasing a enterprise player, that entitles the 1) ticket, if: the game in a chance participate randomly and the winning predetermined are tickets symbols or from player preprinted numbers reveals immediately the can be determined whether which it entitling player the to win a winning a ticket ticket is procedures prize prescribed in features as in a prize an to win a game, including opportunity 2) drawing game; or or or secondary subsequent chance symbols the numbers or ticket evidence of or, by player player's option, at the selected selected becomes entitled a computer, player a procedures for prescribed in the features and prize as prize in a game, including an to win opportunity game if drawing or secondary subsequent or chance or numbers are player's symbols all of the some or drawing game, the player's if in a chance selected time randomly computer at the ticket is selected if ticket is selected in chance purchase or drawing.
(c) Notwithstanding the a authorization of state lottery (a), following under par. games, or simulating games, any following of the may not be 1) by lottery: conducted a any state as game in which winners are on selected based the results of a 2) event; sporting any banking race or game, card 3) including blackjack, fer; baccarat or chemin de 4) 5) roulette; poker; any game or craps other 6) 7) dice; keno; rolling bingo 21, bingo involves jack, 8) bingolet bingo any or craps; game of chance that is placed any on a mechanical, slot machine or electrome- or chanical electronic generally device that is available 9) played casino; be a gambling any game to at or device commonly game that is a known as video a chance or gaming commonly video machine or that is considered machine, be a gambling to video unless such machine is by a video device operated game the state in a autho- (a) par. permit rized under sale of through tickets retail outlets under contract with the state and the device does not determine all player's some or of the symbols or on player's numbers ticket have been drawing, by selected a verifying chance or that the player's randomly by ticket has been selected a central 10) system computer any at the of purchase; game time 11) game that is similar to a listed in this paragraph; game other that is commonly considered be a not, gambling form of and is or is not substantially to, (a). game by similar a conducted par. state under game (a) No par. conducted the state under may permit player game a purchase ticket, or to participate game, otherwise from a residence using a computer, telephone or other form of electronic telecommunication, technological video or aid. Const, iy §
Wis. art. 223. Focusing on the language amended section, there can be no doubt the amendment established limitation on sweeping the legislature's to authorize power "gambling any form." The text specifically exceptions it barrier, to this but several lists any authority state-operated lottery to con- denies the many craps, poker, forms roulette, keno, other duct *107 gambling. activi- Because these enumerated they specifically excluded, forms constitute ties are legislature may gambling not authorize. that the explicitly ¶ amendment does not 224. The 1993 gaming it not exclude Indian Indian but does include present language Clearly, gaming the section's either. gaming. enough In include Indian on its face to broad extrinsic circumstances, the court must examine these give proper interpret provision and it to the materials effect.
¶ once that 225. It should be noted at majority's wide-ranging extrinsic examination of of the framers of discern the intent materials —to adopted people it—stands who amendment and federal and to contrast the tunnel-vision stark applied to earlier versions of Article have state courts proper meth- If had followed the IV,Section 24. courts odology interpreting 1848 constitution and experience In- with amendment, the Wisconsin very different. dian would be plain ¶ amended con- truth is that the 226. The contemporaneously en- from the is different stitution 565.01(6m)(c), § it in that statute, acted Wis. Stat. gaming. exception if Moreover, no for Indian contains beyond its to the words the amendment look we rejected legislature history, legislative note that the we impact clarify on opportunity the amendment's an amending question. gaming by the ballot Indian powerful made ¶ case can be Nonetheless, 227. to close down not intended the amendment was Indian casinos. First, Wisconsin constitutional amend- given prospective
ment is to be
effect
unless
amend-
specifically provides
Kayden Indus.,
ment
otherwise.
prospective
Wis. 2d at 731.35 The
effect of the 1993
suggested
amendment
to most lawmakers
that if
any impact
gaming,
amendment had
on Indian
it would
not come
1999,
until 1998 and
when the time came for
compacts.
the state to
renew
persuasive
Second,
there is
evidence that
legislators
preserve gaming
intended to
as it existed in
including
gaming.
response
Indian
an
in-
quiry, Attorney
Doyle
Representative
General
advised
Medinger
John
proposed
that "a constitutional amendment as
compacts
the Governor would not affect
already
which
exist under the current state of the
Att'y
Doyle
substantive law."Letter from
James E.
Gen.
(June
1992).
Rep.
Medinger
John
*108
Attorney
¶
Repre-
230. The
General also advised
February
sentative Marlin
3,
Schneider on
1993, that,
opinion,
proposed
in his
"the
constitutional amendment
gaming
being
currently
would not affect Indian
con-
compacts
ducted in this state under the terms of the
[A]
between the various tribes and the Governor....
currently proposed
constitutional amendment as
would
compacts
already
not affect
which
exist under Att'y
current state
the substantive law." Letter from
of
(Feb.
Doyle Rep.
Gen. James E.
3,
Marlin Schneider
1993)
added).
(emphasis
widely
These
were
assurances
repeated during
campaign by propo-
the ratification
35
Bates,
State v.
See
principle
nearly
This
universal.
Gornbein,
(Iowa
People v.
1981);
N.W.2d 426
¶ there discussion was of the United States the contracts clauses ture that 10, Wisconsin I, Section and the Constitution, Article prevent would Constitution, I, Article Section closing proposed down Indian casi- amendment from by memoranda from was fueled nos. This discussion Legislative Deputy Henkel, Director of Jane R. February Lynn Adelman, dated Council, to Senator Representative Travis, David dated June 1992, and to Memorandum 19, 1992. See Henkel/Adelman Memorandum. Henkel/Travis hand, it would be Based on the evidence at opponents argue proponents or that either the hard expected intended the immediate of the amendment of Indian casinos. closure impact amendment on 234. The intended compacts is not so the Indian extension *109 during reports of news
clear. consensus process amend- was amendment's ratification compacts. might For in- of the affect renewal ment reporter concluded stance, a Milwaukee Journal closing though casinos Indian Wisconsin "threat passes years," if the amendment won't hit six for more potential compacts up there was the "when the come for in renewal 1998 and 1999 that amendment could be used to shut down the tribal Schultze, casinos." Steve help light questions, on Answers shed amendment Milw. Apr. J., at B-3. The Wisconsin State Journal passage noted that of the amendment would not affect compacts years for at least six but that tribal members feared state would not renew the com- pacts. Seely, Gaming it; Ron Youcan bet on referendum Apr. is explains why St.J., sure to confuse, 4, 1993, Wis. 1-A. at This opposed
some tribes the amendment. compacts pro- 235. Each of the 11 contained a vision for renewal, automatic worded as follows:
Duration.
A. Compact This shall be effect for a term of years seven after it binding becomes on the parties. B. Compact The duration this shall be thereafter automatically years, extended terms unless of five party either serves written notice of nonrenewal on the party other not less than one hundred eighty days prior expiration original term of this Compact any extension thereof. added). compact, (emphasis
See St. Croix section XXV governor signed In 1998 and 1999 the who original compacts, Tommy Thompson, was still in compacts by deciding office, and he extended the not to serve a notice of nonrenewal on the tribes. Governor Thompson's challenged decision to extend was not at that time court. compacts designed
¶ 237. Extensions were automatically, necessity nego- to occur without the expand gambling tiation. These extensions would not *110 They preserve the status sense. would substantive quo. of the ballot the title This was consistent with prohibited" "Gambling expansion question: it was —and by explanations of the amendment consistent with Representative Lynn Bock, Peter Adelman Senator approval "freeze of the amendment would that put gambling in Wisconsin and current level gam- expanded forms of new, on brake constitutional 'yes' Lynn bling." Bock, Editorial, "Vote Adelman & Peter expansion," Milw. Mar. J., Question on 7 to limit Attorney consistent with 1993, at It was also A-8. proposed Doyle's constitu- that "the General assurance Indian would not affect tional amendment currently being Att'y Gen. Letter from conducted." See (Feb. 3,1993). Doyle Rep. Marlin E. to Schneider James right party nonrenew 238. Either had five-year existing compacts is undis- intervals. This at proponents puted. that However, is little evidence there gover- require a Wisconsin the amendment to intended compacts. fact, In some nor nonrenew the opposition was on the view the amendment based provisions extension of the automatic that because being given permanent compacts, were the tribes legislators monopoly. if addition, understood compacts, it nonrenewal of the forced amendment impairment trigger of con- about would lawsuits eliminate the nonrenewal would because forced tracts activity revenue-raising great at Indian bulk of compacts, Finally, one, one nonrenewal casinos. among problems of consistent treatment create would compact the Lac Courte illustrate, the To the tribes. Superior Chippewa have would of Lake Oreilles Band mid-August nonrenewed, if but ended compact not have ended would Nation's Ho-Chunk compacts have would All tribes whose until June 1999. compact been nonrenewed before the Ho-Chunk ended argued violating could have IGRA, Wisconsin was compact provisions, permitting allegedly prohib- *111 games ited casino allowing casinos, in some Indian but not games the same of the casinos the tribes compacts whose had ended. compacts
¶ 239. The 1998-99 did have some However, the amendments. 1998-99 amendments did any compacts substantially not render different original compacts. from the County instance, For the Forest compact Potawatomi was amended to increase the number of slot machines from 200 to 1000 and to permit blackjack playing the of at the tribe's Menom- Valley Panzer, onee Casino in Milwaukee. 271 Wis. 2d give ¶ 295, 32. The 1998-99 amendments did not (or tribe) County any gaming Forest activity.36 Potawatomi a new generally See to Amendments the Forest County Community Potawatomi of Wisconsin and the Gaming Compact of State 1992, Wisconsin 1-4 (1998). County original The Forest Potawatomi's com- pact Valley authorized slot machines at Menomonee only changed; site, that so the number of slot machines blackjack and it authorized at other Potawatomi tribal County §§ Compact facilities. Forest Potawatomi IV XV(H). Thus, the 1998-99 did amendments not violate 36In negotiations on compact initial renewal with State, sought Wisconsin tribes an expansion games, including roulette and craps, promised larger the State shares of their gambling Amy Rinard, revenues in return. Casinos seek to roulette, J.S., 24,1996, craps, Milw. Dec. at A-l. These initiatives accepted by were not Thompson. Governor The Journal Senti against nel expansion, suggesting editorialized that money offer of more gaming for expanded "smacks a bit of little Editorial, tribes, bribery." risky Wisconsin, A bet Milw. J.Sentinel, 30, 1996, 10-A; Editorial, at Dec. 'no' say Just J.Sentinel, more gaming, Milw. Nov. at 4-J. by unless extension the Wisconsin Constitution They sup- were also the constitution. itself violated 2710(d)(1)(B). § ported 25 U.S.C. brings decided us to the issue was 240. This authority namely, Panzer, whether the Governor had gaming original approve to the Indian amendments craps, poker,
compacts roulette, to add new explicitly prohibited the Wisconsin which are keno, Constitution. Panzer, contended Governor expansive § gives governors Wisconsin Stat. 14.035
Wis. authority negotiate into and amendments to enter governor compacts. "The Section 14.035 states: may, compact that state, behalf this enter into on 2710(d)." § negotiated This U.S.C. been under 25 has delegation § recognized important as 14.035 an court power power Governor, to the but it concluded that this *112 "subject implicit Panzer, 2d to limits." 271 Wis. is certain ¶ 295, 60.
¶ acts as 242. The court held that the constitution legislature governor, and the a limitation on the both gover- the criminal code acts as a hmitation on the that nor. governor power delegated
¶ also is 243. The to 2710(d)(1)(B), pro- § by IGRA, limited 25 U.S.C. which "[cjlass gaming shall on that III activities he vides lawful (B) only in are ... located ¿/such Indian lands activities by any permits any purpose gaming that for a State person, such added.) organization, entity." (Emphasis Ac- cordingly, prohibits if a Class III law state activity governor's power negotiate activity, is that the to ¶ Panzer, 295, 271 2d 89.37 circumscribed. Wis. Doyle addressed this issue Counsel for Governor 52, 87, 295, 2d N.W.2d Doyle, v. 2004 WI 271 Wis. ¶ Panzer does 244. IGRA not a state governor ¶ invest with authority to are negotiate games prohibited that to everyone Instead, state law. IGRA acknowledges the primacy of state law over a III gaming Class so activity as the state not long does to permit gaming activity Thus, anyone any would purpose. governor contra- vene the governor law if contravened state law. federal Panzer, 245. the court concluded the
¶ iy amendment to Article 24 of Section the Wisconsin Constitution 945, and Wis. Stat. ch. which criminalizes gambling, foreclosed Governor from amending compacts include additional types games prohibited Panzer, by law. Wis. 2d 295, 96. The Panzer court ¶ held: agreement
[T]he Governor's to the additional keno, roulette, craps, and poker contrary in 2003 was criminal/prohibitory sections of law in state addition to It beyond constitution. power state any single actor or government branch of to unilater- ally gaming activity authorize policy violation of the in Wisconsin's criminal governor may code. The carve out exceptions criminal state's statutes unilaterally. are legis- We unable to conclude delegated lature such power delegate or could such power light 1993 constitutional amendment. Panzer, 2dWis. legislature changed has not the crimi-
nal roulette, statutes governing poker, craps, keno. More important, legislature cannot change the 666. The court responded, beginning quoting at ¶ with *113 approval analysis in Greyhound, American 146 Supp. F. 2d at 2710(d)(1) 1067: "According § to the structure of plain its terms, a III compact legal cannot make class not other- wise permitted by law. legalize state The State must first game, a tribes, only even if for before it can a compact become term." any way craps, poker, in and keno roulette, on statutes games permit conducted to be these that would may legislature authorize these not Wisconsin! by people, amend- constitutional until four legisla- impediment to the constitutional ment, remove governor present nor other action. Neither tive authority § may rely governor 14.035 as on Wis. Stat. prohibits. negotiate held Panzer constitution what the by negotiating vires acted ultra that beyond the Governor power scope the Wisconsin that give any governor gave Legislature under the or could present constitution. holding only Panzer, it is is not 247. This argument Circuit Court made to the Seventh
also appeal Appeals du of the Lac failed the State's Attorney In a brief submitted decision. Flambeau Doyle, the State said: James General statutory authority cannot exceed [T]he Governor 14.035, Section Wis. delegated to him. has been which may, governor on Stat., merely "[t]he provides that has been state, any compact into this enter behalf of 2710(d)." assumes This statute under 25 USC negotiated on the negotiated be based compact will that such 14.035 does that section. Section requirements change policy public any way to in amend purport for merely authorization gaming. It is Wisconsin compacts. The sign legally negotiated the Governor only such delegated to the Governor Legislature has federal law and the authority the state statutes as delegation cannot exceed The Governor provide. either 25 comport with does not signing compact which 2710(d) gaming policy. or Wisconsin's U.S.C. s argument consti- the 1993 made before was The State's Passage the 1993 amendment amendment. tutional argument. already strengthened unanswerable an *114 248. The majority appears ¶ to understand peril § on relying Wis. Stat. 14.035 as the Governor's source of authority to new agreeing games that are prohibited by constitution. It attempts fashion an alternative analysis that muddles the distinction be- tween amendments, extensions and and wraps them both in the mantle protective of "impairment of con- tracts." Majority 67. The op., gist of the ¶ majority's analysis is as follows:
(1) original compacts The Majority are lawful.38 op., 6, 77.
¶¶ (2) The compacts may be automatically extended and
will automatically extend unless formal notice of Majority nonrenewal is filed. op., 65. ¶ (3) compacts may The be amended to games. add new
Majority op., 82-86. ¶¶ (4) The provision for amendment is a fundamental
feature of original each compact. Majority See op., 91, 95. ¶¶
(5) parties The have a reliance interest in the continu- original
ation of the compacts. Majority op., 58. (6) Nonrenewal of the compacts because of the con-
stitutional amendment would unconstitutionally impair compacts. Majority op., (7) Because original compacts contemplated games,
amendments that add new amendments to original compacts that add new are constitutionally protected by the contracts clauses (1) original The compacts are lawful legisla because ture governor authorized the negotiate Wisconsin to Indian gaming compacts, IGRA, by consistent with passage its of Wis. (2) 14.035; § Stat. the United States District Court ordered the (3) State to compact negotiations; "conclude" governor Wisconsin, pursuant delegated authority order, and court (4) agreed to compacts; compacts negotiated thus were timely challenged. and United States Constitutions. of the Wisconsin Majority op., ¶ analysis unavailing danger- majority's is both *115 scrutiny. it not withstand careful
ous, and does compacts provisions ¶ All contain autho- 249. the original rizing example, Forest For the amendments. compact, County in XXX, Section states: Potawatomi Compact modified, not be amended or oth- "This shall agreement prior erwise altered without the written added.) (Emphasis and Tribe." both the State the pro- Plainly, provision ¶ is a 250. this bare-bones parties agree permits the to to cedural rule that changes compact. provision not autho- in the The does disregard parties their own laws. It does not rize the give to authority beyond negotiator party for a extra the authority negotiator already has. compact valid, to it For a amendment be 251. writing. agreed After the 1993 amend- must to be iy 24, however, state officials ment to Article Section gaming authority to bind state are denied The that violate the Wisconsin Constitution. activities authority governor more to violate the Wiscon- has no governor legislature. The sin Constitution than authority sign compact has no more Wisconsin Badger approving prohibited games mascot. than provision compacts men- A second original County Forest Pota- tions amendments. (1992) Community Compact provided, part, watomi in Section IV: Gaming III
Authorized Class right operate A. The Tribe shall have the during following games III the term of this Class Compact: Compact only provided in as this but games 1. Electronic of chance with video facsimile displays;
2. Electronic of chance with mechanical displays; Blackjack; break-open
4. Pull-tabs tickets when not played bingo being at the same location where played. III
B. The Tribe not Class may operate any enumerated in this section this expressly Compact unless this is amended Compact pur- XXX. suant to section Forest County Community Potawatomi Wisconsin Gaming State of Wisconsin Compact added).39 and B. (emphasis Section IVA. Subsection B. *116 to in refers back the amendment section discussed ¶ 253. Other subsections of the compact provide
¶ that if the commences or State to license operate additional the be permit games, compact may reopened JVC., for amendment. id. at and E. D., See Section 254. These reasonable provisions permit ¶ activities, addition gaming of new such as lotteries and they lawful; on-track so as are pari-mutuel betting, long they but do not constitute an independent grant
39The original compacts provi 10 other contained the same sions. See Bad River Band IV(B); § Compact Winnebago [Ho- IV(C); Compact IV(B); Chunk] § § Lac Courte Compact Oreilles IV(B); Compact Compact § Lac du Flambeau Menominee IV(B); IV(B); IV(B); § § § Compact Compact Oneida Red Cliff IV(B); § Sokaogon Chippewa Compact Chippewa St. Croix Com IV(B). IV(B); pact Stockbridge-Munsee Compact § § gaming authority approve III activities not Class governor permitted in The Wisconsin. otherwise right "contract" to disre- does not have some Wisconsin gard state constitution. majority appears to believe otherwise. 255. The parties agreed majority opinion states that when allowing
upon provisions for amendments to the future country, may types games in that be conducted Indian provision negotiated parties the amendment for "the interpreted auspices court law as under the games Flambeau, III are under which all Class Lac du added). (emphasis negotiable." Majority op., ¶ Thus, authority negotiate governor has the under Lac du Flam- that would have been lawful Original Compacts are and 1992. The beau in 1991 and further the 1993 Amendment insulated from gaming changes and until the laws unless Wisconsin's Majority op., compacts ¶¶ 65-66. are terminated. majority summarize, To concludes authority duty governor has the Wisconsin gaming games, negotiate III i.e., III all Class all Class though the 1993 constitutional activities, and to act as problem there is a with amendment did not exist. But gaming" very position. III is a broad term this "Class gaming encompasses I that are not Class all forms of gaming. "all Class II The classification or Class pari-mutuel betting, games" on-track III includes both betting explic- pari-mutuel was Off-track off-track. itly prohibited Constitution Wisconsin today. *117 by prohibited Constitution the Wisconsin and is 24(1) (5). Const, by iy § not affected art. It was Wis. negotiate governor cannot Thus, a the 1993 amendment. disregarding the constitution all Class III without as of 1987. governor authority A has clear under the agree compact permit in a
Wisconsin Constitution to to a operate dog racing Wisconsin tribe to a track or other pari-mutuel betting track to offer at that track. betting permitted by Pari-mutuel on-track is both the Constitution and state Wisconsin statutes. On the other governor authority permit hand, a of Wisconsin has no to dog a second tribe to take off-track on bets races Why? conducted the first tribe. Because off-track pari-mutuel betting prohibited by is the Wisconsin Con- compact negotiated If a stitution. amendment were permit dog operating tribes to take bets on legitimize races without betting track, a it would off-track in Indian country throughout Wisconsin. If the constitution does gubernatorial approval not bar amendment, such an it approving betting would also not an bar amendment on sporting long betting all activity and all events, races so as that was not barred federal law. governor
¶ 258. When this court authorizes disregard stopping constitution, state there is no point... except negotiable. Any federal Jai law. alai is game negotiable. Any gambling activity casino is negotiable long so as it does not violate If federal law. governor disregard is authorized to the' constitution in compact why one amendment, it is hard to see governor may disregard constitution other compact permit amendments. This could the Governor negotiate perpetual compact and waive the state's sovereign immunity. Three of the four members of the majority supported these amendments their Panzer dissent. impairment
¶ 259. The of contracts clauses do not poker, save the 2003 amendments, roulette, which add craps, gaming compacts, and keno to the Indian because importance the tribes understood the to the state limiting games. casino *118 articulated original compacts 260. Seven of the For intent and material considerations.
the parties' Indians of Wisconsin instance, Chippewa the St. Croix in of December 1991 stated Section Compact Gaming XXXI: of:
A. In consideration III The to be able to offer Class Tribe's desires economically games provide are viable and tribal self- support substantial revenues sufficiency and to development, and economic may games that such be have confidence Tribe period offered for of time that such recover its develop enterprise, can its investments, capital and receive a reasonable return; and limit the "casino- types
2. The State's desire to this state type"games may be within offered pervasive have to a select number order this "casino-type" gambling broad-scale within state; acknowledge the mutual with parties compromises types the Tribe authorized
respect to during of this and with Compact the term operate Compact significant to the duration of this were respect reaching agreement and are material considerations Compact. of this the essence Gaming Com- St. Croix Indians Wisconsin Chippewa added).40 (1991) XXXI (emphasis pact, Section XXXI; Compact § Bad Lac Courte also River Band See XXXII; XXXI; § § Compact Compact Menominee Red Oreilles XXXI; § XXXI; Sokaogon Chippewa Compact § Compact Cliff XXXI; Stockbridge-Munsee § Chippewa Compact St. Croix § XXXI. Compact question A threshold contracts analysis
clause is whether a contract to which state is party surrenders an essential attribute of state sov ereignty. See United States Trust Co. N.Y. v. New *119 of (1977). Jersey, 1, 431 U.S. 23-24 Contracts that limit police power the exercise of a state's or eminent domain power reserved-powers are "invalid ab initio under the doctrine[.]" 23; Id. at see also 'l Wis. Police Ass'n v. Prof Lightbourn, ¶59, 2001 WI 149, 243 2d 512, Wis. implicate N.W.2d 807. If a contract does not a state's police power power, or eminent domain to establish an impairment necessary unconstitutional contract, it is (1) pre-existing to show: there a valid, was contract; (2) legislation substantially impairs the the contractual (3) (a) relationship; significant and either there is no legitimate public purpose legislation and behind the (b) significant legitimate public if there pur is a and pose, legislation unnecessary the is unreasonable and public purpose. Lightbourn, serve the See 243 Wis. 2d ¶¶ 512, 147-49. addressing question 262. Without the threshold validity majority's
or the of the conclusions as to the first parts three-part ably third of the test—which are Roggensack's concurring/dissenting addressed in Justice opinion disagree majority's with the conclusion —I I\( the 1993 amendment to Article Section 24 substan- tially impairs relationships original the created the compacts applies prospectively scope when it to the gaming. majority op., ¶ See Legislation impairs
¶ 263.
a contractual relation
ship
expectations
when it "alters the contractual
of the
parties." State
Moran,
ex rel. Canon v.
¶
266. The
amendments to
contingency
games represented
compacts
new
to add
rely
might might
not
that
or
not occur.
tribes could
contingency.
Co.,
R.R.
88 U.S.
on that
See Ochiltree v.
(1874) ("the obligation
contract
249, within
subsisting
meaning
obli-
Constitution is a valid
one"). They
contingent
speculative
gation, not a
rely
possibility
on the
that the State would
could
prohibited
purposes
are
for all
offer new
that
persons, organizations,
entities,
to do so
all
because
Against
would violate both state and federal law.
this
background,
imagine
it is hard to
how
court could
denying
right
hold
play poker,
tribes the new
craps,
roulette,
and keno at their casinos—when no one
right
substantially
else has that
and unconsti-
—would
tutionally impair
compacts.
their
¶
fully
reliance,
terms of
the tribes were
Attorney
Doyle's
aware
posi-
General James
stated
games.
tion on new
After the Lac du Flambeau decision
appealed,41
appeal
issued,
was
the State
and that
was
not dismissed until March 23, 1992. Lac du Flambeau
Superior Chippewa
Band
Lake
Indians v. State
(7th
1992).
Wisconsin,
By
41The Associated reported Press the following statement *121 Attorney from Doyle: General governor, "The client, as the has asked for an appeal. And I concur in his decision. There is considerable throughout interest country the regarding this ruling." Buelow, Michael C. State gears up fight stop to casino gambling, The (Appleton), July 18, Post-Crescent 1991, at B-6. that do currently the three tribes electronic with games not entered if are compacts such compacts, not have becomes effec- the in definition change [before into Doyle responded part: Attorney tive]." General date, change, on its effective those legislation The will After the games permitted are Wisconsin. which games, legislation the enumerated date of the effective longer etc., no roulette, banking games, will craps, card provided in the except as be in Wisconsin permitted proposed to grandfather [pursuant provision 565.01(6m)(c) gaming com- regarding § state-tribal tribes to that it will be pacts]. point At unlawful for games and applies to conduct those whom statute is unlawful, the Governor not their conduct since negotiate over them. required added). Id. at 2 (emphasis existing asked about also legislators right request tribes
compacts "grant games." revised to additional permit be compacts legislation "Does the They prescient question: asked the Governor, negotiation process, through prevent to conduct additional Indian tribes from authorizing responded: Doyle General games?" Attorney prevent not the Governor legislation would The current adding over the negotiating with the tribes from long games those games compact to the so as additional legislation, date the effective permitted are after prior to the effec- games were added or the additional permit- are not legislation. tive date If date, would be the Governor ted effective after able to add them. added).42 Id. at (emphasis 211, n.30 ¶See infra. *122 271. On July 1994, Attorney General Doyle before the appeared Senate on Committee Indian Af- fairs. Committee was considering Senate Bill 2230, (but involving proposed never approved) amendments to IGRA. for the Speaking National Association Attorneys General, Attorney General Doyle said:
We are [with also concerned scope gaming in the provision with provision bill] which makes games not as a prohibited matter of state and criminal subject law negotiation. provision neglects This recognize that prohibited some states specific have through self-executing the use of constitutional provisions. These types prohibitions stronger are than statements of public policy state stronger than the state's criminal law. Comm,
Hearing on S. 2230 the S. on Indian Before Affairs, 25,1994). 103rd Cong. (July Later, Senator McCain asked the following:
Senator suggested McCain. You've the bill needs to explicit make provisions regard with changes you in State Do law. think that provisions such may give rise to claims under the 5th amendment of takings property without compensation? Doyle. Well, they
Mr. certainly may give rise to the claims. I certainly And would give my hesitate to legal opinion on whether that would be I successful. think it very given would be difficult talking we're about policy broad social of the State to declare that that's a taking, as I takings understand laws. mean,
I argument made, same could you be if put aside question, the Indian you permitted that if gaming State, you in a could simply change the law to say longer gaming there's no in the State. I don't think the operators would a takings concerns have again, giving I'm 5th amendment. But claim under the analysis takings you legal, 5th amendment quick, any research. without *123 Comm, the on Indian on S. 2230 S. Hearing Before 1994). (July 25, Cong. 103rd
Affairs, General 1, 1994, Attorney August 272. On Inouye Daniel K. and a letter to Senator Doyle sent wrote: his answer. He amplifying Senator McCain Change State Law change- a asked our views on whether
We were also Act, operative in the which became provision of-law existing imper- an gaming compact tribal under make the Fifth missible, Taking a under could constitute is merit the do not believe there Amendment. We gaming terminating once-legal could suggestion This taking constitutional sense. is constitute the the consti- property-based expectation the kind of not prohibitions have never state criminal protects; tution from hostage plans profits for held to be been legal. which the state can make activities Takings under the history and decided cases simply provide no of the U.S. Constitution Clause ban Indian proposition that a on the support taking gaming trigger compensable could activities private property.... takings in . .. the Court noted recent [Supreme]
As decisions, action governmental both the the nature of regulated industry are assess- the crucial factors industry any Takings Clause claim. The is ing heavily regulated in the United States. one of most system important regulatory is based on That safety public and welfare. concerns of well-founded willingly participate in Similarly, owners property who. heavily regulated fields are immunized Takings changes, from regulatory Clause even those change regulatory which subsequently system in a financially manner which prop- detrimental erty Court, owner. In the words of the such property simply any reasonable, owners lack investment-backed expectations the regulatory environment will be change. from free Although Attorney Doyle's
¶ 273. General letter "takings" impairment addressed rather than of con- principles espoused tracts, the he are not dissimilar. In Mississippi, (1879), Supreme Stone v. U.S. Court examined effect of a state constitutional banning existing lottery amendment lotteries on an previously chartered the state. The Court acknowl- edged presence contract, of a valid hut declared, it agree legislature bargain away "All that the cannot *124 police power of a state." at Id. 817.
¶ legislature, by 274. The Court declared a that chartering lottery company, a cannot defeat the will of people, the in relation to the further continuance of legislature bargain that business. Id. at 819. "No can away public public the health or the morals." Id. Lot- species gambling." teries, it said, "are a Id. at 821. "Certainly right suppress governmental, the them is by power, to be all exercised at times those in at their discretion." Id. one, therefore,
Any accepts lottery who a charter does so implied understanding with the that the people sovereign their capacity, through and their properly agencies may any constituted resume it at time when public good the shall require, whether it be paid or All get by not. that can one such a charter is governmental suspension rights favor, certain in his subject to withdrawal at will.
Id. good principles law. In remain
¶ The of Stone 275. Supreme in Atlantic Line stated Coast Court City Goldsboro, 548, that: 232 U.S. Co. v. Railroad "contract" clause nor that neither the is settled [I]t overriding has the effect process" clause "due regulations are all that state to establish power of the health, safety, good necessary to secure reasonably community; order, comfort, general welfare bargained nor neither he abdicated power can that this express grant; and that away, inalienable even and is subject to fair are held its property contract and all exercise. Corp., 518 v. 558. also United States Winstar
Id. at See (1996) contemporary important (providing an U.S. 839 contract). power governmental to affect discussion present case, none of members In the seeking Indian casinos. close down of this court primary purpose is to disavow of this dissent The power com- Indian to amend officials state prohibited explicitly pacts are to add expand thereby law and criminal state constitution gambling Giving un- this Governor in Wisconsin. sovereignty precedented power of state is an abdication recognize this court's rewards those who refused in Panzer. decision W, ARTICLE
VII. THE EFFECT OF ON GAMING INDIAN SECTION majority concludes *125 impact no on 24 had Section Amendment to Article IV Compacts, Original gaming, continu- Indian relationships. pre-existing I contractual of ation those disagree. my has the follow-
¶ view,the amendment 278. ing effects. prevents
¶ First, the 1993 amendment legislature governor agreeing any compact from to gaming activity amendment that adds new forms of prohibited by purposes are state for law all all to persons, organizations, and entities. As a result of governors authority amendment, Wisconsin have no to approve gaming activity prohib- new forms of are iy ited Article Section 24.
¶ Second, neither the State nor the Tribes compact seriously jeopar- can ever nonrenew a without dizing gaming future Indian Wisconsin. majority acknowledges as much. This absurd result is consequence the inevitable of a United States District ordering agree Court the State to to that the permitted anyone State had never to in Wisconsin, and explicitly prohibited by that is now the constitution. gaming compacts 281. Third, new Indian approve virtually impossible casino bewill until people approve change in the constitution. prevails, 282. No matter which view the law facing state this is a constitutional The cleanest, crisis. way most honest to correct the situation to is amend the majority's constitution. If the results announced in the people decision are what the want, Wisconsin people give approval. They respect will their will respond being having asked, instead a massive expansion gambling shoved down their throats. present,
¶ 283. At the United States District Court turning and this court have succeeded in IGRA on its only right head. In Wisconsin, Indian tribes have gaming. Apart conduct most forms of Class III from the operated lottery, gaming competition state most has way been driven out of business. This is not the IGRA supposed way was to work. This is not the our federal system supposed long to work. The time is overdue impartial review of this constitutional debacle. *126 that Justices JON
¶ 284. I am authorized state DRAKE ROGGENSACK E and PATIENCE WILCOX join opinion. this
¶ ROGGENSACK, J. 285. PATIENCE DRAKE Dairyland part dissenting pari). {concurring in in (Dairyland) summary Greyhound appeals Park, Inc. judgment dismissing complaint, judgment its which Dairyland's complaint in 2001. circuit court rendered Indian and the 1998-99 involved the 1991-92 majority opinion compacts. concludes that The games compacts violate in 2003 do not added Majority op., ¶ However, the 2003 law. Wisconsin presented gaming compacts never to the circuit were brought properly they are not therefore, court and the circuit court decision. court as we review before this I\( the effect of Article All that are to decide is we Constitution, amended in Section 24 of Wisconsin games in the were included 1993, as it relates gaming compacts. Indian 1991-92 and the 1998-99 meaning and effect 2004, we decided the and criminal amendments of the 1993 constitutional games types added to that were on the new statutes gaming compacts 2003; the new the Indian Doyle, criminal statutes. Panzer v. violate Wisconsin's 2d 680 N.W.2d666. WI 52, 96, 271 Wis. on a final if not set aside this court are decisions of in which the case motion for reconsideration ruling (2003-04),1 § 809.64 issued, Wis. Stat. was question, see court on a federal overturned federal Webster, n.4, 2d 338 N.W.2d v. 114 Wis. State (1983). Notwithstanding law, rule of at this majority up opinion request takes Governor, the of the are to to the Wisconsin Statutes subsequent All references noted. version unless otherwise the 2003-04 puts appeal an issue we decided 2004 it into the request, aof 2001 circuit court decision. In his Governor asserts Article Section 24 iy *127 people Constitution, Wisconsin enacted the of Wis- applied consin, cannot to be the Tribal Nations that gambling operations have in Wisconsin. majority opinion adopts 287. The the view of argues Governor,
the wherein he on behalf of the Tribal Nations that Article Section 24 of the iy applied Wisconsin Constitution cannot be to Indian gambling operations op., Majority ¶¶ in Wisconsin. doing, majority opinion In so the surrenders the judicial independence Supreme of Court Wiscon- thereby stripping Governor, sin the the court of its impartial claim to ability an be decision maker and of its political to act as a check on the branches tripartite system government. Wisconsin's of The ma- jority opinion guise impair- does so under the anof largely ment of contracts discussion based I, on Article Majority op., Section 10 of the U.S. Constitution. its efforts achieve the result 51-95. ¶¶ requested, majority opinion Governor has chooses ignore controlling precedent of the United States Supreme applied, uphold Court, which if would ability State of Wisconsin's to enforce Wisconsin's prohibit any type criminal statutes that III of Class gambling permitted that was not before the constitutional amendment to Article Section 24 of iy the Wisconsin Constitution. majority opinion 288. Justice Prosser's agree Article 24 of Section
concurrence/dissent iy the Wisconsin Constitution is a substantive constitu- prospective Majority tional amendment that is in effect. op., ¶ 22; Justice concurrence/dissent, Prosser's majority interprets However, the 228-33. ¶¶ having compacts as amendment no effect on the aas op., majority con- ¶ 91, Prosser and Justice whole, types has no effect on the amendment the 1993 cludes lawfully compacted prior games to the that were amendment because constitutional prospective Justice Prosser's effect, amendment's agree ¶¶ with Justice 228-33. I dissent, concurrence/ prohibit did not 1993 amendment Prosser that lawfully compacted types that were those any type game in an included Therefore, in 1991-92.2 lawfully gaming compact prior remained to 1993 Indian subsequent compactable Id. to the 1993 amendment. compact no amendments added Because 1998-99 games, compacts types are lawful as 1998-99 new compacts party has the 1998-99 terminated well.3 No they provisions; according therefore, remain in to their *128 opportunity or to non-renew to amend effect, with an Accordingly, occurring I in the concur in 2008.4 next complaint. Dairyland's of of the dismissal affirmance 2 do the that I not discuss majority opinion asserts 24 Consti of the Wisconsin prohibition of Article Section IY agreed upon regard games that were to the casino tution with failing to do so undermines compacts, and that in the 1991-92 games in 2003 are types of added argument that new the the Majority do not discuss op., n.23.1 unconstitutional. agree the I with games compacts of 1991-92 because the casino Article Section of Prosser: Justice concurrence/dissent IY games casino types of prohibition in its prospective lawfully operated. that can be blackjack and Although number of slot machines the to types games were added in no new of increased
tables compacts. the give opportunity to contain an compacts The 1998-99 given in every As no notice was years. of five notice non-renewal least 2008. are in effect until at compacts the majority However, I dissent from the opinion's consideration of and decision about the new types games compacts added in were the 2003 for (1) following acceding reasons: in Governor's request majority on behalf of the Nations, Tribal opinion judicial independence surrenders this court's so necessary protect people tripar- of Wisconsin in a (2) system government; gaming compacts tite are type protected by not the of contract that is either Article I, Section 12 I, Wisconsin Constitution or Article (3) Section of the U.S. Constitution; there is no obligation types games contract new that were permitted compacts; under the therefore, 1991-92 impairment obligation there can be no aof contractual (4) regard; significant State has legitimate public purpose controlling type gambling that borders, occurs within Wisconsin's which I, Article Section 10 does not affect.
I. BACKGROUND appeal ¶ 290. This is taken from a 2001 circuit granting court decision the Governor's5 motion for summary judgment dismissing Dairyland's complaint. appeals. isIt before us on certification from the court of Dairyland asserts that the Class III casino in- gaming compacts prohibited cluded in the 1991-92 are by the 1993 constitutional amendment combination Dairyland argues with state criminal statutes. that this *129 prohibition legal requiring forms an basis for order give the Governor to notice of of non-renewal (Dane compacts. Complaint, ¶¶ 13, 16 and 41-42 purposes For of of ease I to expression, refer the Governor and the of Secretary Department of Administration as "the Governor." 2001). Accordingly,
County are 22, we Cir. Ct. Oct. meaning required and effect of Article to establish the regard iy in to of Constitution Section 24 the Wisconsin compacted types games of casino that were whether may after the 1993 constitu- continue for in 1991-92 amendment. tional analysis provisions
¶
Article
In the
of
291.
that relate
24 of the Wisconsin Constitution
TV,Section
by
appeal,
important
presented
it
this
to the issues
recognize
decide,
decided,
what we did not
we
what
constitutional amendment
Panzer.
about the 1993
compacts
that
the 1991-92
were
Panzer concluded
Panzer,
295,
into,
271 Wis. 2d
when
lawful
entered
type
game
¶
of
not included in
new
99, but that
by
prohibited
compacts
the laws Wisconsin
those
was
subsequent
1993, id., ¶
not decide
96. We did
lawfully
types
games
were
com-
that
whether
pacted
after the
retained their lawful status
1991-92
ratified
amendment was
1993 constitutional
question was not
because that
citizens of Wisconsin
Id., ¶
the 1993
also concluded that
before us.
We
amendment,
with Wis-
combination
constitutional
policy
statutes,
criminal
set out
state
consin
games
types
prohibited
not of
III
that were
all
Class
compacts.
type
Id., ¶¶ 96-97.
included in
1991-92
those
asks us
hold that
Governor
types
in Panzer
that our 2004 decision
same
compacts are
to the
held
additions
were unlawful
provision.
prohibited by
very
same constitutional
judicial independence,
of stare
However,
the doctrine
controlling
application
United States
and the
decisis6
by its
rule
this court "is bound
longstanding
It is a
Hansen,
52,
2d
243 Wis.
v.
2001 WI
precedent."
own
State
omitted).
(citation
Failing to abide
stare
II. DISCUSSION A. Judicial Independence Judicial independence is universally recog-
nized as central to a democratic form of government. raises decisis serious concerns as to whether imple- court is menting "principles... founded in the law rather than in the Payne Tennessee, v. proclivities of individuals." 501 U.S. (1991) (1986)). (quoting Vasquez Hillery, v. 474 U.S. (IGRA) Gaming Regulatory Indian Act three created gaming, classes which classes types games. are based on 2703(6)-(8). §§ U.S.C. The types games that may Indian tribes offer under I Class are traditional gaming, Indian social 2703(6), § games and whether to offer those is solely determined tribes, having with states no control over those 2710(a)(1). decisions, § 25 U.S.C. II gaming bingo, Class includes electronically or not it or whether computer and if assisted played lotto, location, pull-tabs, boards, the same punch tip jars, bingo, similar games, instant and other as well card as games explicitly state; however, that are authorized it does any banking games, baccarat, not include card such as chemin de fer, blackjack, electronic or electromechanical facsimiles of the 2703(7). § same slot II gaming may machines. Class be operated in permits gaming a state that such purpose. 2710(b)(1). § Class III types games includes all do II, 2703(8), § not fall within I or games Classes III Class are the types generally regulate that the heavily states most may operated be only to a pursuant compact, tribal-state 2710(d). § judicial independence, phrase, re- But what does meaning, part, by ally determine its mean? canWe *131 accomplish. example, designed For it was what system tripartite judicial independence in is a essential judicial government a branch is to act as where the of political branches —executive on the two check agree judicial independence legislative. that All would jurisprudence implies pillar of American a on a to issue decisions based courts should be trusted pressures permitting from extra law, of than rule rather judicial inde- to drive their decisions. Judicial sources judicial integrity high requires pendence level of a being "tough courage decisions," without to make the integrity by reprisals. political of or affected favors the sur- an institution is critical when the court as political rounding arises is context which a case govern- charged highly other branches of or when the strong political pressure particularly under ment are regard presents. to the issues case independence as ¶ is often described Judicial 294. independence being general types: decisional of two Salzberger, independence. Eli A M. and institutional Separation Analysis Pow- the Doctrine Positive of of of Independent Judiciary?, Why ers, Do Have an or: We (1993) [hereinafter. & 351-52 Rev. L. Econ. Int'l Analysis Separation A Doctrine Positive of of of Powers]. independence is adherence Decisional 295. of decisions cases, of in individual such that the rule law judge affected are not a court or an individual by politi- government or of another branch demands judiciary requires independent "[A]n agendas. Id. cal given, [its] not be decisions, once would also that government (responsible ignored altered them)." Id. at enforce independence Institutional focuses on in
dependence
judicial
government
of the entire
branch
legislative
from the
and executive branches. It is most
separation
powers
often associated
doctrine,
with
though
reality
both decisional and institutional
in
dependence
separation
powers qualities.
have
For
example,
legislature may
enact a statute that affects
functioning
of courts as an institution. See State v.
(1982)
¶
majority opinion
view, the
surren-
independence
ders the decisional
of this
to
court
the
Governor,
branch,
who heads the executive
and is
against
arguing
applying
IV,
Article
Section 24 of the
Wisconsin Constitution to the Tribal
Nations.
majority opinion
by overruling
so
does
this court's
Panzer,
types
decision in
where we decided that the new
games
compacts
that were added to the tribal
in violated the 1993 constitutional
were,
amendment and
prohibited by
therefore,
the criminal laws of the State
Panzer,
¶¶
of Wisconsin.
295,
271 Wis. 2d
96-97.
May
298. Panzer was
on
issued
2004. That
subject
decision was
to a motion for reconsideration for
(Rule)
days
May
§
from
2004. Wis. Stat.
809.64. A
days
motion for reconsideration made more than 20
supreme
timely
after decision of the
court
not
is
will not
Wis.,
be heard. Lobermeier v. Gen. Tel. Co. of
(1984).
¶ 299. The granted by Dairyland's complaint circuit court in was not the issue of whether That decision did involve compacts games types to the new that were added prohibited Section 24 of Article in were of Wiscon- and the criminal code Constitution Wisconsin not have reviewed The circuit court decision could sin. types because new added were not then in circuit those facts were existence court to address. majority opinion's decision overrule 300. The ongoing holding in the culmination of an Panzer is
our judicial executive to undermine effort independence branch regard to Indian of this court shortly explain: compacts. our decision in To after released, executive Wisconsin Panzer was branch message government out clear that it would sent All of the Tribal Nations enforce our decision.9 gaming compacts, except Na- one, the Ho-Chunk have subsequent message picked up and, on tion,10have this they Panzer, have continued our decision *133 show that supreme the clerk of the court The records at 13, 2004, July on without the the court file Panzer was closed filing of a motion for reconsideration. Million, Times, Capital Pays See Oneida Nation State $20 30, 2004, 5A.
June
at
v.
respect shown to Panzer
sincerely appreciate
10 I
by the
¶ 301. The Governor, as the head of the executive government, charged by branch of Wisconsin is Article V, 4 of Constitution,11 Section the Wisconsin en- with forcing Notwithstanding the laws. this constitutional obligation upon and the oath the Governor took enter- ing nothing office,the Governor has done to enforce our contrary, types 2004 decision in Panzer. To the of games we concluded were unlawful Wisconsin in our operated knowledge 2004 decision are with the full my consent of the view, Governor. In the failure of exactly type Governor to enforce the law is of undercutting judicial independence of that Eli Salzberger against cautioned at the 1993 International independent judiciary Conference when he "an said, requires [its] given, decisions, also that once would ignored by government." be altered or A Positive Analysis Separation Powers, Doctrine at 352. of of public 302. The executive branch's lack re- spect for the decisions of this court also our undermines tripartite system government, which was created among with checks and balances the three branches of government. independence required Judicial is to sus- magnify tain those checks and balances. We the execu- respect tive branch's lack of for the an courts as independent government necessary branch of tri- to a partite system government disregard when we our Ho-Chunk It type Nation. respect mutual between the courts of the Tribal Nations and the courts of Wisconsin we sought through to facilitate the State Fo- Court Court/Tribal rum, begun first in 1997. V, provides Article part: Section in relevant governor. .. faithfully shall take care the laws be executed. *134 in a the law order to achieve own rules and contort majority particular result, here. as the does affect a ¶ There methods which to 303. are impair that do not the court's of this court decision really example, independence. if For the Governor thought in in was not that this court's decision Panzer Article Section of Wisconsin accord with IX legislature have asked the Constitution, he could specify amendment to further constitutional introduce scope gaming compacts of Indian are not within prohibition contained Article the constitutional IX majority opinion up 24. takes However,when the Section previously places in a decided and it case an issue that we existed, where the issue never tearing we assist Governor integrity apart court. A this institutional integrity does not establish court that lacks institutional only personal it law; rather, establishes rule preferences hold office on of the men and women who any given time. the court at Impairment of B. Contract mainly majority opinion on its
¶ The relies 304. interpretation Consti- I, Section 10 of the U.S. Article majority op., ¶¶ However, 2, 51-59, See 69-79. tution. prior except that "our with no to assert discussion issues] [regarding have relied Contract Clause decisions Supreme upon Court," States the decisions the United majority 12 of I, Section the Wiscon- refers to Article Majority op., constitu- 51. Neither sin Constitution. types protects were added tion the new I, Section Constitution, Article 1. Wisconsin compacts into with The Governor enters behalf of the State. Wiscon- the Tribal Nations on protect impair- sin Constitution does not from State *135 ing obligations although its own contractual itself, to it potentially protect party could another who had a I, contract with the State. Article Section 12 of the protects obliga- Wisconsin Constitution the contractual contracting parties of tions other free to be from inter- provides: I, ference the State. Article Section attainder, post law,
No bill of ex facto nor any law contracts, obligation of impairing shall ever be passed.... say
It makes no to sense that the of State can Wisconsin obligation pro- claim that its own of contract that is provision tected one in the Wisconsin Constitution is unconstitutionally impaired by provision another of the Essentially, Wisconsin Constitution. the State would interfering claim have to that it is with itself.12Yet this majority opinion Majority is the conclusion the op., reaches. legal authority given 2. No citations to are support this conclusion.
2. United Constitution, States I, Article Section 10 begin by setting principle I out a basic of I, Article Section 10 discussions:
Although language of the facially Contract Clause is absolute, its prohibition must be accommodated to the police power inherent safeguard State "to vital people." interests of its Energy Group, Light Reserves v. Inc. Kansas Power & (1983) (quoting Bldg. Co., 459 U.S. Home & might While the Tribal Nations have been able to make argument, this the Tribal parties Nations have chosen not to be to this lawsuit. (1934)). My Blaisdell, 398, 434 v. 290 U.S.
Loan Ass'n principle employs come to three this discussion (1) permits gambling is a contract that conclusions: type I, contract that Article Section not the protects; of
(2) obligation agree there is no contractual permitted types under that were not to new compacts; no im- therefore, there can be the 1991-92 obligation regard; pairment that of a contractual (3) gambling I contracts are if were to assume even protected type potentially could be under also that there an I, Article Section 10 and assume types games, obligation to contract for additional iy 24 of the Constitution Article Section Wisconsin Constitution because the not run afoul the U.S. does significant legitimate State Wisconsin has *136 controlling scope gambling public purpose in the of within its boundaries. majority opinion that Ar-
¶ The concludes 307. iy Constitution, 24 of as Section the Wisconsin ticle expansion types prohibit interpreted in Panzer to beyond gambling 1991-92, for in that contracted of 10 of U.S. Constitution. I, Article Section violates Majority op., ¶ 2. protection gambling contracts There no
a. is for I, the US. Constitution. under Article Section question ¶ must be answered The first 308. sought protection is case where constitutional I, the U.S. Article Section 10 of for a contract under type the contract Constitution is whether potentially protection could be constitutional which Corp. Romein, v. 503 U.S. Motors afforded. See Gen. (1992). question is deter- to this 181, answer application As law. id. of federal See mined explained, Supreme Court whether States United scope of those contracts within the contract comes applies I, which Article Section 10 is an issue that question oft-repeated change underlies the of whether a impairment law in a state resulted substantial of a obligation. question contractual See id. at 186. This negative must be answered in the us, the case before impairment and that answer should be decisive of the question contract it as relates to the United States Constitution. begin pro- I 309. with the federal constitutional part:
vision, I, Article Section 10. It states in relevant . pass any... No state shall.. impairing law obligation of contracts....
The above statement seems broad and absolute. How- interpreted ever, it has never been the United States Supreme preclude legislating Court to a state from protect public regardless morals, health or of what terms a contract awith state contains.13 Stone v. (1879). Mississippi, 101 U.S. legislature Mississippi Stone, 310.
granted company lottery a charter to a to run a for 25 years in consideration for a stated sum of cash and payments annual of additional sums. Id. at One year Mississippi later, the citizens the State of adopted provision a constitutional that declared that legislature any lottery could authorize lottery therefore, the had to be discontinued. Id. at analysis, Supreme explained In its Court that when *137 impairment argument an of contract made, is the first a may While state's police power be in many exercised areas, majority substantive no case cited in opinion, the or that find, I could I, holds Article that Section 10 of the U.S. provides Constitution protection when the at contract issue is by a regulates affected state that law in the of public area morals. always in
inquiry a contract has fact been "whether obligations are." Id. at if its into, so, what entered inquiry Supreme the the as "whether Court set sovereign capacity, Mississippi, did the in its State irrevocably itself consideration bind charter now under twenty-five lottery] [the permit a contract to language years." that the Id. The Court concluded question the of whether clear so that the charter was legislature the on whether had bound itself turned state people "authority" to the and its to bind the state had the legislature concluding had no that the Id. In charter. legislature explained authority, "the the Court such power bargain away police a State. ... cannot power legislature [N]o can of its successors curtail may proper they in matters of as deem make such laws defining police." comes within the In what Id. at 817-18. explained "policepower" that while the Court state, many ways, power police in it defined has been affecting public always health "extends to all matters public denied that can it be morals. Neither subjects proper of this for the exercise are lotteries omitted). (citation concluding power." Id. at 818 away right bargain Mississippi its could the State explained: prohibit future, the court lotteries can, by the legislature of a State whether] [that the will of the lottery company, defeat charter of to the authoritatively expressed, relation people, midst[,] in their continuance of such business further away bargain legislature can it cannot. No [w]e think morals. public health or the public Id. at 819. authority aof on the This same limitation regulation police power away in the contract its
state to Kentucky, Douglas public v. addressed morals was *138 (1897). Douglas, Kentucky, 168 U.S. the State of by provision, operation constitutional forbade the of Douglas lotteries. Id. at 489. claimed he had a contrac- tually right" operate lottery by "vested a virtue of a agreement City written with the Frankfort, of id. at 492, "which the State was forbidden the Constitution impairing, of the United States" from id. at 495. One of analyzing the initial issues the Court addressed in Douglas's impairment of contract claim was, "whether that which the defendant asserts to be a contract was a contract of the class to which the Constitution of the regulation United States refers." Id. at 500. Because the gambling regulation affecting public is a morals, regulation always power which a state has the effect, Supreme operate Court concluded that a contract to lottery type was not the of contract that falls within scope I, Article Section 10. not, sense, [W]e hold that a lottery grant is in any contract within the meaning the Constitution States, United simply license, but a gratuity and State, which the under police powers, its and for the protection public morals, may revoke, at time and forbid the further lottery; conduct of the and that right acquired no during grant, the life of the on the by agreement faith of or grantee, with the can be exercised after the grant revocation of such and the forbidding of lottery, if its exercise involves a continuance of the lottery originally as authorized. All rights acquired on the a lottery grant must be faith of deemed to have been acquired subject to the power State .... added). (emphasis Id. at 502-03 sovereign 312. The retention of its au- thority police power public to exercise its in matters of safety, notwithstanding morals and an assertion of strongly sovereign, rights was contract to curtail *139 City Line Railroad Co. v. in Atlantic Coast reaffirmed of (1914): Goldsboro, 232 U.S. nor the that neither the "contract" clause [I]t is settled overriding of process" "due clause has effect regulations all that are of the State to establish power health, safety, good reasonably necessary to secure the community; order, comfort, general welfare bargained can neither be abdicated nor power that this express grant; and is inalienable even and that away, subject rights are held to its property all contract and fair exercise. added). (emphasis at 558
Id. interpreta- principles 313. The constitutional Douglas Stone, and Atlantic laid down tion that were by the United States Su- Line were reaffirmed Coast Corp., preme v. 518 U.S. Court in United States Winstar (1996). United involved a claim that the Winstar contractually obligated permit financial States was special accounting to use methods institutions exchange as- for the institutions' were authorized sumption failed financial institu- of liabilities of other despite changes in the under FIR- tions, made law among argued, other 843, REA.14Id. at 858-61. Winstar rights passage things, of FIRREA violated its that the of the U.S. Constitution. Id. I, under Article Section 10 at 860. history reviewing the common law ability Congress an one to undo what session provided, Supreme ex- had Court
earlier session "unmistakability plained doctrine," which has been Reform, Recovery, the Financial "FIRREA" is Institutions Corp., States v. Winstar and Enforcement Act of 1989. United (1996). 518 U.S. regulations
used where the at issue affected economic permitted interests. Id. at 871-80. doctrine This side-step I, court to the effect of Article on Section 10 right by concluding the claimed contract an absent provision contrary, unmistakable to the "contractual arrangements, including sovereign those to which a subject party, subsequent legisla- itself is a 'remain sovereign." (quoting tion' Id. at 877 Bowen v. Agencies Opposed Security Entrapment, Public to Social (1986)). 477 U.S. explained
¶ 315. Winstar
that the unmistakabil-
ity
universally applied
doctrine was not
"the
because of
obligations
may
different kinds of
the Government
consequences
enforcing
assume and the
them." Win-
star, 518
at
U.S.
880. Winstar noted that
at times
*140
unmistakability
variant of the
doctrine was referred to
powers
as the "reserved
doctrine," wherein "a state
government may
away
not contract
'an essential at-
sovereignty.'"
(citing
tribute of its
Id. at 888
U.S. Trust
(1977)).
Jersey,
Co. New York v. New
431
U.S.
explain
example"
Winstar went on to
that "a classic
ability
the limitations on a state's
to contract for certain
provisions
Supreme
was shown
Stone where the
legislature
power
Court held that the
had no
to contract
away
sovereign's police power
affecting
in areas
public
Winstar,
morals.
Furthermore,
[The doctrine of powers] requires reserved a determi- nation of the power State's to create irrevocable con- rights tract place, the first rather than inquiry an into purpose or reasonableness subsequent short, impairment. In the Contract Clause does not require a State to adhere to a contract that surrenders an sovereignty. essential attribute of its Trust, U.S. atU.S. gaming compacts Indian are contracts gambling, simple. permit pure Article Section I\£
24 of the Wisconsin Constitution and the criminal laws contained ch. 945 of the within Wisconsin Statutes prohibit gambling. gambling Laws that affect type operate regard public and are morals enacted pursuant police powers of the State of Wisconsin. City Amusement, Inc., Milwaukee v. Milwaukee (1964). 240, 250-51, Wis. 2d 125 N.W.2d625 Amusement, 317. Milwaukee we examined a city's action to collect a forfeiture from Milwaukee pinball Amusement because its machines violated the city's anti-gambling ordinance. Id. at 246. After con- cluding pinball gambling a machines were device, we addressed Milwaukee Amusement's conten- tion that the ordinance was unlawful. Id. at 251. In concluding clearly valid, the ordinance was we explained regulation gambling by govern- that the body police mental was done the exercise of the power.
Ordinances, one, proscribing as the instant such gambling pursuant city's devices are enacted to the police power. Estoppel against municipal- will not lie ity enforcing so as to bar it from an ordinance enacted pursuant police power. to the (citation Amusement, Milwaukee 2d at Wis. *141 omitted). Bingo Supply Equipment inAlso Wisconsin & Bingo Board, Co. v. Wisconsin Control 2dWis. (1979), addressing challenge 276 N.W.2d716 while a to permanently gambling promoters a statute that barred obtaining bingo supplier explained license, from a we legislature's that statute was enacted exercise police power: of its may make reasonable classification which
[A] state necessary intended to be police purpose it deems to the by legislation .... attained (citation omitted). Id. at 307 argument By adopting on the Governor's majority abrogates impairment contract, sovereign police power regulate to State of Wisconsin's jurisdiction. gambling though within its Even this is a prece- question decided on federal that is be based Supreme majority Court, the dent of the United States opinion ignores precedent.15 Supreme this As the Court (1905): explained Trout, Marvin v. 199 U.S. object legislation discourage, and, plain of this is to possible, prevent gambling. if ... We are of no aware provision prevents the Federal Constitution which legislation purpose. this kind of in a State for such a Id. at 225. required precedent
¶ 319.
are
to followthe
set
We
Supreme
questions
on
the United States
Court
meaning
provision
law,
of a
federal
such as the
Webster, United States Constitution.
Wis. 2d at 426
question
earlier,
n.4. And as I noted
it is a
of federal law
type
whether a contract has
created that is of a
been
potentially
protected
be
the United
could
States
Motors,
are contracts that affect morals not afford therefore, the U.S. Constitution does protection to them. majority opinion puts
¶ 321. The
the cart before
Steel Co.
horse,
when it relies on Allied Structural
(1978), Energy
Spannaus,
v.
¶ 322. the conclusion that sovereign authority police State maintains its under its power legislate affecting public to in areas morals, the majority opinion jurisdic- asserts that the State has no tion to enforce criminal its laws on tribal land unless jurisdiction granted by gov- such has been the federal Majority op., quarrel ernment. 73.1 have no with this absolutely assertion; however, it has no relevance to whether State of Wisconsin can enforce its criminal prohibit gambling laws that on tribal land. The com- pacts recognize authority themselves of the State to regard gambling enforce the State's criminal laws in to on land. tribal
XVIII. OF ALLOCATION JURISDICTION jurisdiction. B. Criminal State, except provided
1. The as in par. B.2. and sec. XXIII, jurisdiction shall have prosecute such crimi- explained inability court also that the of a state to limit its own sovereign powers depended subject on the matter of that morals, example, public limitation. For in areas of the state binding gave could not create a contract that up power its to act future, in the but state could enter into effective financial contracts that restrict will future state action. Id. at 23-27. 17Only may if the a type protected by contract is of be Constitution, the United analysis States does the shift impairment whether there has been a substantial of a contrac Romein, obligation. Corp. tual Gen. Motors v. 503 U.S. (1992). laws, including amend- gambling of its nal violations tribal lands. This thereto, may occur on as ments as the in a manner may be exercised similar jurisdiction jurisdiction pursuant criminal general exercises State 1162. Consent of U.S.C. section Law to Public shall be condition Attorney of Wisconsin General any prosecution. This to commencement precedent termination of the term and shall survive provision Compact. this Community County of Wisconsin Potawatomi
Forest (1992 Compact Gaming of 1992 and Gaming Compact), of Wisconsin State XVIII, B. 1. Section compacts no contractual created The 1991-92 b. gambling. types obligation add new majority opinion assumes that the also *144 compacts obligation compacts to amend the contain an types gambling permit of addition of new to compacts. permitted Ma- the 1991-92 under were majority jority op., that the The then assumes application 24 of the Wisconsin of Article Section IV obligation compacts impairs this of to the Constitution contrary of the U.S. I, Article Section 10 to contract Majority op., ¶ 91. Constitution. assumptions majority opinion's are
¶ 324. The step contract first basic It misses the incorrect. compacts analysis, create the 1991-92 which is: did games? types obligation The add new to contractual right property is determined in a contract of a creation Keystone v. Coal Ass'n Bituminous under state law. (1987) (Rehnquist, C.J., DeBenedictis, 470, 519 480 U.S. agreement dissenting). to law, an Under Wisconsin imposes agreement no contrac- in the future reach an Dunlop obligation party. Laitsch, 16 v. on either tual (1962). In order to have 36, 42, 2d 113 N.W.2d Wis. agreement right, parties' be must a contractual Pilgrim Village, "definite" and "certain." Petersen v. (1950). 621, 624-25, Wis. 42 N.W.2d273 However, compacts obligation 1991-92 create no contractual compacts types amend gambling to add new provision because no creates a "definite and certain" obligation regard. majority opinion ignores in that principle this basic law, i.e., contract it never con- obligation cludes that the State had a contractual to add types new to those that are listed in the compacts. 1991-92 explain why obligation 325. To there no is types games, compact
add provi- new I review the conceivably interpreted sions that could be to relate to amending types gambling of Class III that were permitted gaming compacts: in the 1991-92
IV. AUTHORIZED III CLASS GAMING.
B. The may Tribe not operate any III gaming Class not expressly enumerated this section of this Com- pact unless this Compact pursuant amended section XXX. Gaming Compact, Section B. IV
XXX. AMENDMENT. Compact modified,
This shall not be amended or *145 otherwise altered prior without the agreement written of both the State and the Tribe. provisions
Id., Section XXX.These are too indefinite to obligation types create a contractual to add additional games. example, compacts of For Section IV B. of the is prohibitory provision expressly a types that restricts the gambling may says that the Tribe offer. It that the of any type gambling operate III of Class Tribe cannot "expressly IV of the is not enumerated" Section that any obligation permit compact. to It no creates state obligation type game, it no tribal new of and creates game operate type IV not listed in of that is Section only provides XXX written 326. Section signed by compact that are both alterations of binding. clause and are It is a standard State the Tribe TV nor in most written contracts. Neither Section provision an XXX a definite that creates Section types obligation future; new to add provision give therefore, could rise to a breach neither regard. most, in that At those sec- of contract action imply, promise, possibility do not even tions mutually agreeing upon but unspecified games in the
other provisions create a do not contractual future. Those games. obligation types have add additional As we explained: be
To be
a contract must
definite
enforceable
must
requirements.
It
certain as to its basic terms
obligations
out
commitments and
spell
the essential
certainty.
party
of each
with reasonable
Inc.,
297,
Realist,
2d
118 N.W.2d
v.
Wis.
Witt
(1962);
Shetney Shetney,
39-40,
v.
49 Wis. 2d
see also
(1970) (concluding that discussions
ticle I, Section 10 of the
refers,
U.S. Constitution
has
(1)
having
parts:
obligation
been described as
two
(2)
perform
to
contract;
the terms of the
obligation
pay damages
nonperformance.
due to
(citing
Horwitz-Matthews, 78
at
F.3d
Oliver Wen
dell
"The
Holmes,
Law,"
Path of the
L.
10 Harv.
Rev.
(1897)).
Therefore,
in order to have a claim
"impairment"
"obliga
under the constitution for
of an
perfor
prevents
contracts,"
tion of
the state law that
prevent
remedy
mance must also
a
for the breach of
nonperformance. Horwitz-Matthews,
F.3d at
(citing Ruckelshaus
Co.,
v.
986, 1016
Monsanto
467 U.S.
(1984) (concluding
takings
that in order to have a
claim
under the United
Constitution,
States
there must be no
ability
compensation against
to maintain a suit for
government)).
Appeals
As the United States Court of
clearly explained:
for the Seventh Circuit so
repudiates
[W]hen a state
a contract
it is
which
a
party
doing
it
nothing
is
different from
a private
what
party
party repudiates
contract;
does when the
it is
committing a breach of contract. It would
absurd
be
turn every
breach of
municipality
contract
state or
into a violation of the federal Constitution.
Horwitz-Matthews,
above
game
refusing
type of
after the term of the
to add a new
compacts expired
of the tribal
was a breach
1991-92
compacts,
for a consti-
that fact cannot form the basis
a
obli-
interference
contractual
claim of
with
tutional
prevented
gation unless
Na-
the State has
Tribal
damages
recovering
However,
the breach.
from
tions
summary judgment we are
court,
the circuit
whose
reviewing,
no
about whether
made
determination
contract with the Tribal Nations
breached its
State
iy
enacting
24 of the Wisconsin Consti-
Article
Section
made no determination about
tution; the circuit court
impair-
damages
However,
an
for a breach.
before
lie,
breach
claim
there must be a
ment
contract
will
damages
preclusion
and
for that breach.
contract
Horwitz-Matthews, 78
at 1251.
F.3d
expan-
permit
Nevertheless, in order to
majority opinion
gambling,
com-
of Indian
sion
precepts
ignores
pletely
law.
of constitutional
It
basic
obligated
explains
to the
how the State became
never
permit
games or what
additional
Tribal Nations to
reviewing
are
addition,
are. In
because we
those
majority opinion
court, of the circuit
a 2001 decision
identify
breached its
whether the State has
could not
yet
and
it concludes
the Tribal Nations
contract with
24 Constitution
Article
Section
Wisconsin
iy
obligation under the U.S.
with a contractual
interferes
explained above, before there
As we have
Constitution.
contract within the
an interference with a
can be
meaning
I,
10 of the U.S. Constitu-
of Article
Section
"obligation";
must be a
an
there
tion, there must be
obligation;
have
and the State must
of that
breach
remedy
precluded
of those
for the breach. None
has occurred here.
conditions
Controlling
scope gambling
c.
in Wisconsin
significant
legitimate public purpose.
ais
and
finally,
ignore
willing
331. And
if I
even were
requirements
all the foundational
for the commence-
impairment
analysis
ment of an
of contract
set out
majority opinion's three-part
above
move
and
into the
analysis, Article
Section 24 of the Wisconsin Consti-
1\£
tution does not run afoul of the United States Consti-
(1)
tution for at least two reasons:
Article
Section
I\£
operate
impairment";
24 does not
as "a substantial
(2)
"significant
legitimate public
the State has a
purpose"
prohibition
types
gambling.
behind its
of all
Energy Reserves,
¶ 332. When we evaluate whether a state law
impairment
a
constitutes
substantial
of a contract
right,
[] (enterprise)
we are "to consider whether the
complaining party
regulated
has entered has been
past."
(citing
Structural,
the
n.13.)
Id.
Allied
When he into enterprise already regu- an lated in the particular to objects, which he now he purchased subject legislation to upon further the same topic.
Energy (quoting Reserves, 459 U.S. at Veixv. Sixth (1940)). Bldg. Ass'n, Ward & Loan 310 U.S. long ¶ gambling subject Here, has been prohibition criminal under the of laws Wisconsin. The acknowledge compacts Tribal Nations in the that the may gambling State enforce its criminal statutes on always expec- tribal Therefore, lands. there has been an "enterprise" gambling subject tation that the of could be legislation. explained to further In addition, as we above, the Tribal Nations could not mount a breach of against if the Governor chose games. the State contract action types agree Therefore, of not to additional types games prohibition of substantial new is right. impairment of an enforceable "significant and ¶ addition, the has a State legitimate public purpose" Article Section behind IY compact- prohibits Constitution, which of the Wisconsin permitted ing types in the that were not for prohibition compacts. in the is done The State's 1991-92 public power police morals, in the area exercise its subject legitimate always for state laws. is which Douglas, I were Therefore, at even if U.S. 502-03. majority opin- analysis employ clause the contracts 24 is not conflict with Article Section out, ion sets IY Constitution. I, Section U.S. Article justifies majority opinion its reversal 335. The by asserting that the contract in Panzer of our decision argument impairment in Panzer. was not discussed disingenuous Majority op., ¶ it laments, "Wefind 94. It majority refused to the Panzer some members of analysis properly was Clause reach the Contract majority Dairyland it, and now criticize before majority opinion deciding opinion issue." Id. The history recreating be, than it like it to rather as would impairment issue was never as it was. The contract Panzer, 2d 271 Wis. Panzer. court before impairment party argued contract 102. No briefed *149 it. As various Panzer; did not decide therefore, we said, not "reach have we should members of this court presented to the decide issues" that were out and County parties. Rock, Beloit v. Town court of of 344 ¶ 37, 657 72, Wis. 2d N.W.2d 8, WI 259 (Abrahamson, dissenting). Panzer, However, in C.J., Instead, it created did not follow that rule. dissent impairment issue, without then decided the contract briefing argument. the benefit of Panzer, 2dWis. (Abrahamson, dissenting). ¶¶ 295, C.J., 210-218 ¶ 336. Panzer turned on whether the Governor power compacts types games had the to enter into of compacts. that were not included in the 1991-92 We concluded that the constitutional amendment, Article IY Section 24 of the Wisconsin Constitution, withdrew that power legislature from both the Governor. Pan- zer, ¶¶ 2d 83-86, Wis. 96-97. Based on this lack power validly compact types games of for the new of compacts, that were added in the 2003 we concluded games majority ¶ those Id., were unlawful. 96. The opinion holding Majority never overrules this of Panzer. op., ¶ 80 n.61. party argued the case us, before no has people by enacting Wisconsin, of the 1993
constitutional amendment, did not withdraw from the legislature power and the Governor the to authorize new types gambling. argued All that has been is that invalidating types games the new added in 2003 would I, violate Article Section 10 the U.S. Constitution and Article I, Section 12 of the Wisconsin Constitution. The majority opinion ignores the Panzer limitation on power though of the Governor as it were the same issue obligation as whether the State has a contractual to add games. types Analytically, very new the two issues are Compare Panzer, different. ¶¶ 2d Wis. 83-102 ¶¶ Accordingly, with 304-34 of this concurrence/dissent. agree analysis because I do not with the set out in the majority opinion or its Panzer, decision to I overrule respectfully dissent.
III. CONCLUSION
In 2004,
we decided the effect of the 1993
types
constitutional
on
amendments
the new
*150
gaming compacts
2003;
in
the Indian
added to
that were
games
criminal statutes.
violate Wisconsin's
the new
Panzer;
of
The decisions
this
2d
271 Wis.
a motion for recon-
final, if not set aside on
are
court
days
in
in the case which the
made within 20
sideration
by
§
ruling
809.64, or overturned
issued, Wis. Stat.
was
question,
Lobermeier,
see
a federal
a federal court on
Webster,
421-22;
Nations that Article gambling applied Indian cannot be Constitution majority operations that the I conclude Wisconsin. (1) acceding opinion in error because: is request Nations, the on behalf of the Tribal Governor's judicial majority opinion inde- court's surrenders this necessary protect people pendence Wiscon- so (2) government; system tripartite a sin in protected type compacts of contract that are not the Consti- I, Article Section of Wisconsin either Constitution; 10 of the U.S. I, or Article Section tution (3) types obligation to contract for new no there is permitted under the 1991-92 were not impairment compacts; can no therefore, there be (4) regard; obligation the State in that contractual public purpose legitimate significant has gambling controlling type within that occurs I, 10 does which Article Section borders, Wisconsin's not affect. *151 I am authorized to state that Justices JON join
E WILCOX and DAVID T. PROSSER this concurrence/dissent. notes In his law review (1849) 'lottery' § 138 1 the term ch. "uses that Wis. Stat. Farnsley, supra He at 855 n.225. sense." in its limited quotes 1 as Section follows: promote any or Every person up who shall set every aid money.. person . and who shall lottery for way any or shall in be by printing writing, either or setting any such up, managing drawing in or concerned building house, shop or lottery, or who shall in knowingly permit him... occupied owned or lottery, drawing any setting managing or such up, ticket, of a ticket.... any lottery of or share sale legislature passed words, In other following the first law spoke adoption of constitution "lottery "drawing," all tickets," and of lotteries and scope signifying Moreover, a limited term. clearly distinguishes lotter- Index to the 1849 statutes subjects appeared gaming. betting The and two ies from headings on different in the index and under different pages in the statutes. betting on horse is no reference to 134. There Farnsley, According to in the 1849 statutes. races gambling legislature in to halt at acted 1878 first (Wis. (1878)), § 1885 to Stat. racetracks (1889)).17 (Wis. § gambling at local fairs Stat. halt Farnsley, supra, Current able Thus, at Richard was betting racing "By on the horse to write: parts at least established, well some horses were History II Current, Wis- Richard the state." N. (1976). Betting at racetracks and on horses consin Wisconsin, Research Bul- Legalized Gambling Evolution 2000) (hereinafter Ritsche). (May 00-1 letin history (discussing the Ritsche, supra, at See 5-6 Wisconsin). betting in on-track