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Indian Gaming Case Analysis

Although it is not certain, it appears that the 1992 and 1998 compacts, at issue in Dairyland Greyhound Park, Inc. v. Doyle, (No. 03-0421), will remain intact.

In Dairyland, Justice Jon P. Wilcox recused himself, and the result was a 3-3 deadlock, with remand to the court of appeals. The three justices who, with Wilcox, were in the majority in the case at bar, voted to reverse the circuit court.

The inference of the split is that those three justices concluded that, in light of the 1993 constitutional amendment, the 1992 compact and 1998 compact amendments were invalid.

In addition, much of the reasoning in the majority opinion logically requires that holding. Neither blackjack nor slot machines — permitted in the earlier compacts — are permitted under the amendment.

Logically, therefore, it could be reasoned that the governor in 1998 was compelled by the constitution to negotiate compacts that did not permit those games.

Also, even though the 1992 compact permitted blackjack at two of the FCP’s casinos, it did not authorize it at the casino in Milwaukee. Not until the 1998 compact was that authorized. By then, however, the state constitution banned blackjack.

Nevertheless, the majority states, “The Tribe’s existing games such as slot machines and blackjack must be sustained on the basis of the validity of the original compact, which were negotiated pursuant to court order before the 1993 constitutional amendment, as well as constitutional and contract law.”

Another possible interpretation is that that statement preserves blackjack only at the FCP’s other two casinos, not the one in Milwaukee, because blackjack prohibited at the time of the 1998 was amendment authorizing it.

The dissent noted the inconsistency in a footnote, “It is important to note that the 1998 amendments to the 1992 compact … added previously prohibited blackjack tables as a permissible Class III game. Certainly, if Governor Doyle did not have authority to agree to the 2003 amendments, then adopting the reasoning of the majority opinion, Governor Thompson did not have authority to agree to the 1998 amendments.”

Later, however, the majority states, “The petitioners concede the validity of the 1992 compact and the 1998 amendments, and we have not as yet been presented with a persuasive case to conclude otherwise.” So, it appears that the addition of blackjack at the Milwaukee casino will be upheld in the Dairyland case.

Another interesting question raised by dicta in the case is the continued validity of sec. 945.035, which sets a $500 penalty for maintaining a slot machine on a licensed premises.

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Previously, this was a Class E felony. The change in classification in 2000 enabled tavern owners to pay out on slot machines without risking real criminal penalties, effectively going from a criminal/prohibitory to a civil/regulatory approach.

However, the majority stated the following in dicta: “We might engage in analysis of whether Article IV, Section 24 is self-executing. That is, does the constitutional limitation on legislative power to authorize gambling create barriers to gambling activities of our state’s citizens without concomitant legislative enactments. Suffice it to say that repealing all criminal gambling statutes in order to permit expanded gambling might not be consistent with the constitutional limitation on legislative power to authorize gambling, because the current criminal statutes on gambling predate the 1993 amendment and repeal of these statutes now might be viewed as tantamount to authorization. Thus, it might be argued that our state’s criminal prohibitions have remained in place since 1993 not only by legislative will but also because the state constitution forbids the legislature from rolling back these criminal prohibitions (cite omitted)(emphasis in original).”

As noted, however, one criminal prohibition has not remained in place since 1993 — against slot machines in taverns. The dicta above creates an avenue to have the amendment held unconstitutional, and the criminal penalties against tavern owners reinstated.

– David Ziemer

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David Ziemer can be reached by email.

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