Panzer v. Doyle

Decision Date13 May 2004
Docket NumberNo. 03-0910-OA.,03-0910-OA.
PartiesMary E. PANZER, personally and as Majority Leader of the Wisconsin Senate, John G. Gard, personally and as Speaker of the Wisconsin Assembly, and Joint Committee on Legislative Organization, Petitioners, v. James E. DOYLE, in his official capacity as Governor of Wisconsin and Marc J. Marotta, in his official capacity as acting Secretary of the Wisconsin Department of Administration, Respondents.
CourtWisconsin Supreme Court

For the petitioners there were briefs by Gordon B. Baldwin, University of Wisconsin Law School, Ellen E. Nowak, legal counsel state assembly/speaker's office, Stephen L. Morgan and Murphy Desmond, S.C., Madison, and oral argument by Gordon B. Baldwin and Stephen L. Morgan. For the respondents the cause was argued by John S. Greene, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by State Senator Gary R. George, Madison.

An amicus curiae brief was filed by Douglas B.L. Endreson, William R. Perry, and Sonsoky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C.; Howard Bichler, Hertel; Jennifer L. Nutt Carleton and Oneida Law Office, Oneida; Douglas William Huck, Bowler; Kris M. Goodwill, Hayward; Larry Leventhal and Larry Leventhal & Associates, Minneapolis; David M. Ujke, Bayfield; Kevin L. Osterbauer, Odanah; Rebecca R. Weise, Black River Falls, on behalf of St. Croix Chippewa Indians of Wisconsin, Oneida Tribe of Indians of Wisconsin, Bad River Band of Lake Superior Tribe of Chippewa Indians, Stockbridge-Munsee Community, Ho-Chunk Nation, Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin and Red Cliff Band of Lake Superior Chippewa Indians.

Amicus curiae briefs were filed by Thomas J. McAdams, Assistant District Attorney and E. Michael McCann, District Attorney, Milwaukee.

An amicus curiae brief was filed by Tori L. Kluess, Jodi L. Arndt and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on behalf of the Green Bay Area Chamber of Commerce.

An amicus curiae brief was filed by Grant F. Langley, Patrick B. McDonnell and William J. Domina, Milwaukee, on behalf of the City of Milwaukee and Milwaukee County. An amicus curiae brief was filed by Michael J. Kirschling and Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C., DePere, on behalf of Wisconsin Citizen Action and Bay Area Workforce Development Board.

An amicus curiae brief was filed by Brady C. Williamson, James A Friedman and LaFollette Godfrey & Kahn, Madison, on behalf of Menomonee Valley Partners, Inc., Teamsters Local Union Nos. 200 and 344, Milwaukee Building & Construction Trade Council, and Professional Firefighters of Wisconsin, Inc.; and by Kevin J. Wadzinski, and Gardner Carton Douglas LLP, Washington, D.C., on behalf of Indian Community School of Milwaukee, Inc.


¶ 1. This is an original action under Article VII, Section 3(2) of the Wisconsin Constitution.1 The petitioners are Mary Panzer, personally and in her capacity as the Majority Leader of the Wisconsin Senate, John Gard, personally and in his capacity as Speaker of the Wisconsin Assembly, and the Joint Committee on Legislative Organization2 (collectively referred to as the petitioners). The respondents are James E. Doyle, in his official capacity as Governor of Wisconsin, and Marc J. Marotta, in his official capacity as Secretary of Administration (collectively referred to as the Governor).

¶ 2. The supreme court hears original actions in cases that involve substantial legal questions of more than ordinary importance to the people of the state. Normally, these questions require prompt and authoritative determination. This case presents questions about the inherent and delegated power of Wisconsin's governors to negotiate gaming compacts with Indian tribes.

¶ 3. The petitioners contend that the Governor exceeded his authority in 2003 when he agreed to certain amendments to the gaming compact our state has entered into with the Forest County Potawatomi (FCP) Tribe, a federally recognized Indian tribe indigenous to Wisconsin. They assert that the Governor improperly agreed to amendments that (1) expand the scope of gaming by adding games that were previously not permitted for any purpose by any person, organization, or entity in Wisconsin; (2) extend the duration of the compact indefinitely so that it becomes perpetual; (3) commit the state to future appropriations; and (4) waive the state's sovereign immunity.

¶ 4. The Governor responds that the legislature granted Wisconsin governors expansive authority in Wis. Stat. § 14.035 to enter into and modify gaming compacts with Wisconsin Indian tribes and that he acted in complete conformity with this statute, with the federal Indian Gaming Regulatory Act (IGRA), and with the terms of the original compact, in negotiating amendments to the FCP Gaming Compact.

¶ 5. We hold that the Governor exceeded his authority when he agreed unilaterally to a compact term that permanently removes the subject of Indian gaming from the legislature's ability to establish policy and make law. Further, we hold that the Governor acted contrary to the public policy embodied in state law and therefore acted without authority by agreeing to allow the FCP Tribe to conduct new games that are prohibited by Article IV, Section 24 of the Wisconsin Constitution and by Wisconsin's criminal statutes. Finally, we conclude that the Governor exceeded his authority by agreeing to waive the state's sovereign immunity, an act which he had no inherent or delegated power to undertake. We also address other issues raised by the parties and declare rights.


¶ 6. The petitioners seek a declaration that certain provisions of the FCP Gaming Compact as amended in 2003 are invalid. To understand the factual and legal issues that affect our decision, we recapitulate our state's unique history with respect to legalized gambling. See generally Dan Ritsche, Wisconsin Legislative Reference Bureau, The Evolution of Legalized Gambling in Wisconsin, Research Bulletin OO-1 (May 2000); see also Douglass Charles Ellerbe Farnsley, Gambling and the Law: The Wisconsin Experience, 1848-1980, 1980 Wis. L. Rev. 811.

¶ 7. Article IV, Section 24, as part of the original constitution, prohibited the legislature from ever authorizing "any lottery." Wis. Const. art. IV, § 24 (1848) ("The legislature shall never authorize any lottery, or grant any divorce."). In all likelihood, the term "lottery" in this context was intended to apply to a particular species of gaming, inasmuch as contemporaneous legislation before and after the adoption of the constitution contained specific prohibitions against lotteries as well as separate prohibitions against other forms of gaming.3 Moreover, most states passed anti-lottery amendments or legislation by the 1840s because of notorious scandals involving lotteries, including the Grand National Lottery authorized by Congress.4

¶ 8. Over time, however, attorneys general and courts interpreted Wisconsin lottery statutes to prohibit any form of gaming that included the elements of prize, chance, and consideration. These statutory interpretations were linked eventually to the term "lottery" in Article IV, Section 24, blurring the implicit limitations of the provision. See Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 724, 150 N.W.2d 447 (1967); State v. Laven, 270 Wis. 524, 528, 71 N.W.2d 287 (1955); State ex rel. Regez v. Blumer, 236 Wis. 129, 130, 294 N.W. 491 (1940); State ex rel. Trampe v. Multerer, 234 Wis. 50, 56, 289 N.W. 600 (1940); State ex rel. Cowie v. La Crosse Theaters Co., 232 Wis. 153, 155, 286 N.W. 707 (1939). Under this broad reading, the legislature could not authorize any gaming activities without amending Article IV, Section 24. The legislature enforced the public policy against gaming in the constitution by enacting criminal statutes. See Wis. Stat. ch. 945; see also Farnsley, 1980 Wis. L. Rev. at 854-62 (summarizing the history of Wisconsin's statutory provisions on illegal gaming through 1980).

¶ 9. Article IV, Section 24 was amended five times between 1848 and 1987 to permit the legislature to authorize specific limited types of gaming. The first amendment (1965) modified the definition of "consideration" so that the legislature could authorize certain promotional contests. The second amendment (1973) authorized charitable bingo; the third (1977) authorized charitable raffles.

¶ 10. In 1987 the constitution was amended twice more, to authorize pari-mutuel on-track betting and a state-operated lottery. The pari-mutuel betting amendment was the first to clearly depart from the historic concept of lottery.5 The state-operated lottery amendment soon prompted questions about its scope, and its ramifications have been the subject of controversy ever since.

¶ 11. The year 1987 was also a watershed year in the history of tribal gaming because of a decision by the United States Supreme Court. The Court examined a state's authority to regulate tribal gaming within its borders and responded by setting ground rules on when a tribe may operate commercial gaming enterprises substantially free of state regulation and when a state may prohibit commercial gaming on tribal land. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

¶ 12. In Cabazon, the Court reviewed a judgment that two Indian tribes obtained in federal court barring the State of California and one of its counties from enforcing their laws on bingo and certain card games on Indian land. Id. at 206. The Court noted that state laws may be applied on tribal reservations only when Congress so provides. It examined Pub. L. 280 in which Congress granted certain states — including California and Wisconsin6 — jurisdiction over criminal offenses committed in Indian Country7 "to the same...

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