03-0910-OA Mary E. Panzer v. James E. Doyle

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“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.”

“This case presents questions about the inherent and delegated power of Wisconsin’s governors to negotiate gaming compacts with Indian tribes.”

“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.”

“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.”

“We agree with the petitioners that the Governor, in agreeing to a provision in the 2003 amendments to the FCP Gaming Compact that precluded any periodic opportunity for the state to withdraw from the compact, violated the principles of separation of powers. The Governor was without authority to agree to Section XXV of the February 2003 amendment to the FCP Gaming Compact because it created in effect a w compact. We also find that several of the additional games included in the February 2003 and April 2003 Amendments to the FCP Gaming Compact are not compactable as a matter of state law, because they violate both the constitution and the criminal code, and accordingly we declare that the Governor had no authority to agree to Section IV.A.5, IV.A.7, and IV.A.8 as set forth in those 2003 amendments. Finally, we conclude that the Governor agreed to waive the state’s sovereign immunity in Section XXIII.C, an action which he did not possess inherent or delegated power to undertake. Although the petitioners raise other challenges, we defer decision on those challenges because the amendments to the compact are likely to be renegotiated.”

DISSENTING OPINION: Abrahamson, C.J., joined by Bradley, J., and Crooks, J. “The sum total of the majority opinion is to deliver the following bad news to the people of the State: all bets are off. Or at least, all new bets in the 2003 amendments are off.

“A majority of the court devotes more than a third of its lengthy opinion to recounting the long history of gaming in the State of Wisconsin. Its factual diversions mask its inconsistent patchwork of legal analysis.

“The practical consequences of the majority opinion are as breathtaking as its legal analysis.

“As a result of the majority opinion, the Tribe’s payment to the State of $34.125 million due on June 30, 2004, need not be paid. Almost $207 million of direct tribal payments to the State, upon which the legislature relied in adopting the budget, are in jeopardy, as is approximately $100 million annually thereafter.48 Employment in the State will also be dramatically affected by the majority opinion. The Tribe estimates that gaming compacts have created 35,000 jobs in the State to date and that the 2003 amendments will add 20,000 more jobs and a billion dollars in new investments.

“The majority opinion’s ruling against Indian gaming not only will have an enormous effect on the state and local economies but also will interfere with federal and state policies promoting the economic welfare of the Indian tribes and Indian education. In its desperation to save the 1992 compact and the 1998 amendments, and yet to invalidate the 2003 amendments, the majority has gone well beyond the issues originally presented in this case.

“In contrast, we conclude that the Governor properly exercised his power pursuant to Wis. Stat. § 14.035. Likewise, the duration provision is valid, as similar provisions are commonplace and recognize the government’s need to enter into long-term contracts. Furthermore, the majority’s application of the 1993 Wisconsin constitutional amendment to outlaw certain gaming substantially impairs the contractual relationship between the State and the Tribe and violates the federal and state constitutional impairment of contracts clause.

Finally, the issue of sovereign immunity is not ripe and fails on the merits.

Thus we conclude that the 2003 amendments are valid and that the majority opinion raises substantial federal issues, rendering this court a stopping point on the parties’ way to the federal courts.”

Rights declared; declaratory relief granted, injunctive relief denied.

David T. Prosser, J.

Attorneys:

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.