Dairyland Greyhound Park, Inc. v. McCallum, No. 02-1204.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Vergeront, P.J., Deininger and Lundsten, JJ.
• Citation: 655 N.W.2d 474,258 Wis.2d 210,2002 WI App 259
• Docket Number: No. 02-1204.
• Decision Date: 19 September 2002
• Parties: DAIRYLAND GREYHOUND PARK, INC., Plaintiff-Appellant, v. Scott McCALLUM, in his official capacity as Governor of the State of Wisconsin, and George Lightbourn, in his official capacity as Secretary of the Wisconsin Department of Administration, Defendants-Respondents.

258 Wis.2d 210
2002 WI App 259
655 N.W.2d 474

DAIRYLAND GREYHOUND PARK, INC., Plaintiff-Appellant,
v.
Scott McCALLUM, in his official capacity as Governor of the State of Wisconsin, and George Lightbourn, in his official capacity as Secretary of the Wisconsin Department of Administration, Defendants-Respondents.¹

No. 02-1204.

Court of Appeals of Wisconsin.

Submitted on briefs August 30, 2002.

Decided September 19, 2002.

258 Wis.2d 213

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ronald R. Ragatz, Peter A. Peshek and Mindy Rowland Buenger of DeWitt Ross & Stevens S.C., Madison

On behalf of the defendants-respondents, the cause was submitted on the brief of John S. Greene and Thomas C. Bellavia, assistant attorney generals, James

258 Wis.2d 214

E. Doyle, attorney general, and Raymond P. Taffora of Michael, Best & Friedrich LLP, Madison

A nonparty brief was filed by Carol J. Brown of Brown & LaCounte, LLP, Madison, Douglas B.L. Endreson and William R. Perry of Sonosky, Chambers, Sachse, Endreson & Perry, Washington, D.C., Howard Bichler, Hertel, Jennifer L. Nutt Carleton and Rory E. Dilweg of Oneida Law Office, Oneida, Paul Stenzel and Douglas William Huck, Bowler, Sheila D. Corbine, Black River Falls, Kevin L. Osterbauer, Odanah, Larry Leventhal of Larry Leventhal & Associates, Minneapolis, MN., Kris M. Goodwill, Hayward, Jeffery A. Crawford, Milwaukee, Eric N. Dahlstrom of Rohnstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Frye, LLP, Phoenix, AZ., Andrew S. Caulum of Caulum Law Office, S.C., Madison, and David M. Ujke, Bayfield on behalf of the St. Croix Chippewa Indians of Wisconsin, Lac du Flambeau Band of Lake Superior Chippewa Indians, Oneida Tribe of Indians of Wisconsin, Forest County Potawatomi Community of Wisconsin, Ho-Chunk Nation, Stockbridge-Munsee Community, Sokaogon Chippewa Community (Mole Lake Band of Lake Superior Chippewa Indians), Bad River Band of the Lake Superior Tribe of Chippewa Indians, Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin, and Red Cliff Band of Lake Superior Chippewa Indians.

A nonparty brief was filed by Alexis H. Johnson, Show Low, AZ and Michael D. Dean, Waukesha, for Kenosha Coalition Against Legalized Gambling.

A nonparty brief was filed by Paul G. Kent of Davis & Kuelthau, S.C., Madison, for Village of Hobart and Brown County.

Before Vergeront, P.J., Deininger and Lundsten, JJ.

258 Wis.2d 215

¶ 1. DEININGER, J

Dairyland Greyhound Park, Inc., appeals an order dismissing its complaint against Governor McCallum for failure to join an indispensable party. Dairyland's action seeks to enjoin the Governor from renewing the state's gaming compacts with Indian tribes having reservations or other land in Wisconsin. The circuit court concluded that the tribes are "necessary parties" to the litigation under WIS. STAT. § 803.03(1) (1999-2000),² and because the tribes cannot be joined as parties, that Dairyland's action should be dismissed pursuant to § 803.03(3). We conclude that the circuit court erred in determining that the tribes are indispensable parties in whose absence the action should not proceed. We therefore reverse the order dismissing the action and remand for further proceedings on Dairyland's complaint.

BACKGROUND

¶ 2. The following background information is taken, in some instances verbatim, from the Legislative Reference Bureau's Research Bulletin 00-1, The Evolution of Legalized Gambling in Wisconsin (May 2000) (cited in this opinion as "LRB").

¶ 3. The Wisconsin Constitution contained "an absolute . . . prohibition of any gaming activity" for the first one hundred seventeen years of the state's existence. LRB at 1. Beginning in 1965, however, constitutional amendments were ratified permitting, in succession, sweepstakes and other promotional contests, charitable bingo and raffles, and in 1987, pari-mutuel on-track betting on racing and a state lottery. Id. The

258 Wis.2d 216

confluence of the state lottery amendment and federal law relating to gaming activities conducted by Indian tribes has resulted in the present circumstances where "Wisconsin's 11 Indian tribes or bands currently operate 16 major casinos throughout the state, which offer Blackjack, electronic gambling machines, and pull-tabs" under compacts negotiated with the state. Id. at 20

¶ 4. Because neither the circuit court's ruling nor ours addresses the merits of Dairyland's claim, it is not necessary to discuss in detail the legal underpinnings of Wisconsin's Indian gaming compacts. It is sufficient to note that federal statutes and case law generally allow tribes to conduct any form of gambling on their lands that a given state permits, free, however, of regulation by the state except as may be negotiated in state-tribal compacts. See LRB at 20-22; see also Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992); 25 U.S.C. §§ 2701-21 (2002) (The "Indian Gaming Regulatory Act"); 80 Op. Att'y Gen. 53 (1991).

¶ 5. By June 1992, Wisconsin had entered into seven-year gaming compacts with eleven tribes, all of which have been extended for five-year terms expiring in 2003 and 2004. LRB at 23. The compacts all contain renewal clauses which read substantially as follows:

The duration of this Compact shall . . . be automatically extended for terms of five years, unless either party serves written notice of nonrenewal on the other party not less than one hundred eighty days prior to the expiration of the original term of this Compact or any extension thereof.

Dairyland seeks an injunction prohibiting the Governor "from entering into any new, modified, extended or

258 Wis.2d 217

renewed gaming compacts with any Indian tribe purporting to allow casino gambling and requiring [him] to issue timely notice of nonrenewal of each compact."³ Dairyland's principal legal theory is that the ratification in 1993 of yet another constitutional amendment⁴ deprives the Governor of whatever authority may have once existed for permitting the tribes to conduct casinotype gaming in Wisconsin under the compacts.

¶ 6. The Governor moved to dismiss the action for failure to join indispensable parties—"the eleven Indian tribes who are parties to the gaming compacts with the State."⁵ The court granted the Governor's motion and Dairyland appeals.

258 Wis.2d 218

ANALYSIS

¶ 7. We emphasize at the outset that the merits of Dairyland's suit for an injunction are not before us in this appeal. We express no view regarding whether, under the present state of the law on gambling in Wisconsin, and under applicable federal statutes and precedents, the Governor should be enjoined from permitting Wisconsin's Indian gaming compacts to be extended beyond their current expiration dates. The only question we decide is whether Dairyland's claim for that relief may be heard and resolved in a Wisconsin court, despite the inability of Dairyland to join the tribes as parties to its lawsuit.

¶ 8. The procedural rule at the center of the issues we address is WIS. STAT. § 803.03, which provides in relevant part as follows:

(1) PERSONS TO BE JOINED IF FEASIBLE. A person who is subject to service of process shall be joined as a party in the action if:

(a) In the person's absence complete relief cannot be accorded among those already parties; or

(b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:

1. As a practical matter impair or impede the person's ability to protect that interest; or

2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.

. . . .

(3) DETERMINATION BY COURT WHENEVER JOINDER NOT

258 Wis.2d 219

FEASIBLE. If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in subs. (1) . . . cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:

(a) To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;

(b) The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;

(c) Whether a judgment rendered in the person's absence will be adequate; and

(d) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

[1]

¶ 9. As the statute's language and structure suggest, the "indispensable party" inquiry is in two parts. We must first determine if the tribes are "necessary" parties for one of the three reasons set forth in WIS. STAT. § 803.03(1). Dairyland asserts that the tribes meet none of the requirements for being a "necessary" party to the present litigation. If that is true, they cannot be deemed "indispensable" under § 803.03(3), and our inquiry will be at an end. See Makah Indian Tribe v. Verity, 910 F.2d 555, 559 (9th Cir. 1990). If we conclude, however, that the circuit correctly declared

258 Wis.2d 220

the tribes necessary parties under § 803.03(1), we must then consider whether the circuit court also correctly determined that, "in equity and good conscience," the action should not proceed in the absence of the tribes, as provided in § 803.03(3).⁶

[2]

¶ 10. Our first task is to ascertain the proper standard for our review of the circuit court's determination that, because the tribes are parties...