Wisconsin court nullifies gaming compact

People Against a Casino Town

News from PACT

A recent article in the New York Times reported on a decision handed down by the Wisconsin Supreme Court in a case that is similar in many respects to PACT's lawsuit against Governor Kulongoski.
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Please see the relevant excerpts from the article below and how portions of the Wisconsin Supreme Court's order correspond to issues in PACT's lawsuit:

Wisconsin Court Nullifies Gaming Compact
(excerpt)

May 13, 2004
By THE ASSOCIATED PRESS

MADISON, Wis. (AP) -- The state Supreme Court on Thursday struck down key portions of a gaming compact that allowed an American Indian tribe to run Las Vegas-style games such as craps and roulette.

A 1993 amendment to the state Constitution bans casino-style gambling, but Gov. Jim Doyle and others have said tribes are exempt.

The court disagreed, and said Doyle also overreached by agreeing to compacts that had no expiration date and would thus remove Indian gaming from review by legislators.

The court's 4-3 decision wipes out key provisions of the new compact Doyle signed with the Forest County Potawatomi last year. That includes nullifying a $34 million payment the tribe was scheduled to make to the
state in June.

The court also ruled Doyle exceeded his authority in waiving the state's sovereign immunity as part of the deals. That provision allowed the state and tribes to go to court to resolve disputes over the compacts.

http://www.nytimes.com/aponline/national

PORTIONS OF THE WISCONSIN SUPREME COURT'S ORDER
THAT CORRESPOND TO ISSUES IN PACT'S LAWSUIT

Decision from Wisconsin Supreme Court in Panzer, et al v. Doyle et al., Wisconsin Supreme Court No. 03-0910-0A, filed May 13, 2004.

"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."

"Finally, we conclude that the Governor exceeded his authority by agreeing to waive the state's sovereign immunity, an act which had no inherent or delegated power to undertake."

"All the parties acknowledge that the amended FCP Gaming Compact is projected to generate additional revenue for the state at a time when additional revenue is needed." "This Court does not decide cases on these grounds. Our duty is to interpret and apply the law. It is for the legislature 'to make policy choices, ours to judge them based not on our
preference but on legal principles and constitutional authority.'" (Flynn v. Dept of Admin.)

"... In any event, we would be derelict if we were to reject a legitimate request to maintain the proper balance of power between and among the branches of our state government simply because of short-term consequences. In the end, fundamental questions about Wisconsin Constitutional law ought to be decided in Wisconsin's highest court."

"The Governor seeks to shield petitioners' claims from review by interposing two procedural objections or 'affirmative defenses'."

"The Tribe's decision not to participate as a party cannot deprive this court of its own core power to interpret the Wisconsin Constitution and resolve disputes between coequal branches of state government. The tribe has been aware of this litigation from its inception. This court would have welcomed intervention. We will not venture the delicate balance of shared power among our three branches of government on the chosen absence of a potential party."

"The upshot of accepting the Governor's invitation to dispose of this case on procedural technicalities would be to insulate this agreement and any future agreement between a governor and a tribe from the powers of state
judicial review. For over 200 years, it has been the province of the judiciary to interpret the constitution and say what the law is. [cites omitted] We are responsible for resolving legal disputes among the three branches of our state government and, therefore, we proceed to the merits of the case."

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