Panzer v. Doyle , 271 Wis. 2d 295 ( 2004 )

DAVID T. PROSSER, J.

¶ 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 IY 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.

FACTUAL BACKGROUND

¶ 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-l (May 2000); see also Douglass Charles Ellerbe Farnsley, Gambling and the Law: The Wisconsin Experience, 1848-1980, 1980 Wis. L. Rev. 811.

¶ 7. Article IY Section 24, as part of the original constitution, prohibited the legislature from ever authorizing "any lottery." Wis. Const, art. IY § 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 iy 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 iy 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 iy 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 extent that such State ... has jurisdiction over offenses committed elsewhere within the State," 18 U.S.C. § 1162(a), and jurisdiction "over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed." 28 U.S.C. § 1360(a). The Court reaffirmed its earlier interpretation that distinguished between the effect of state criminal laws, which are fully applicable to certain reservations under Pub. L. 280, and state civil laws "applicable only as [they] may be relevant to private civil litigation in state court." Cabazon, 480 U.S. at 208. Thus, as a threshold step in determining whether a particular state law may be enforced on tribal lands under Pub. L. 280, the law must be characterized as either criminal or civil.

¶ 13. The Court applied this criminal/prohibitory, civil/regulatory dichotomy in determining whether the state bingo regulations and county gambling restrictions in California were criminal or civil. "The shorthand test is whether the conduct at issue violates the State's public policy." Id. at 209-10. Recognizing that the distinction between prohibiting and regulating "is not a bright-line rule," the Court substantially deferred to the decision of the Ninth Circuit Court of Appeals and concluded "that California regulates rather than prohibits gambling in general and bingo in particular." Id. at 210-11. This conclusion was founded on a statutory scheme suggesting moderation rather than prohibition:

California does not prohibit all forms of gambling. California itself operates a state lottery, Cal.Govt. Code Ann. § 8880 et seq. (West Supp.1987), and daily encourages its citizens to participate in this state-run gambling. California also permits parimutuel horse-race betting. Cal.Bus. & Prof.Code Ann. §§ 19400-19667 (West 1964 and Supp.1987). Although certain enumerated gambling games are prohibited under Cal.Penal Code Ann. § 330 (West Supp.1987), games not enumerated, including the card games played in the Cabazon card club, are permissible.

Id. at 210. The Court ultimately held that neither the state nor the county could enforce these particular gambling restrictions on tribal reservations. Id. at 222.

¶ 14. Shortly after Cabazon, Congress enacted legislation to establish standards for the operation of gaming by Indian tribes. See Indian Gaming Regulatory Act (IGRA), 25 U.S.C.A. §§ 2701-2721 (2001).⁸ IGRA created three categories of gaming — Class I, Class II, and Class III. Class I gaming includes games of "minimal value" as well as traditional forms of Indian gaming. Id. § 2703(6). Class II gaming includes bingo and certain state-authorized or unregulated card games. Id. § 2703(7)(A). The Class I games are under the exclusive jurisdiction of Indian tribes. Id. § 2710(a)(1). The Class II games are under the jurisdiction of Indian tribes, id. § 2710(a)(2), with oversight by the National Indian Gaming Commission. Id. § 2706(b). Although tribes need not have compacts for Class II gaming, the permissibility of such gaming is a function of state law. Id. § 2710(b)(1)(A).⁹

¶ 15. Class III gaming is defined as "all forms of gaming that are not class I gaming or class II gaming." Id. § 2703(8). Under this definition, Class III gaming includes lotteries, pari-mutuel on-track betting, and casino-type games such as blackjack, roulette, craps, keno, and slot machines. Hence, Class III gaming covers the forms of gaming that are most likely to be heavily regulated or prohibited by states. IGRA follows the spirit of Cabazon by making the permissibility of Class III games a function of state law. Section 2710(d) makes Class III gaming activities lawful on Indian lands only if such activities are "located in a State that permits such gaming for any purpose by any person, organization, or entity." § 2710(d)(1)(B).

¶ 16. As noted above, there was uncertainty in Wisconsin about the interpretation of the 1987 constitutional amendment authorizing a state-operated lottery. Confusion cropped up in the state's negotiations with the tribes under IGRA, with the state initially indicating a willingness to permit tribes to engage in a number of casino-type games. Contemporaneously, however, the new Wisconsin Lottery requested a formal opinion on the scope of gaming it could conduct. It also asked the Attorney General: "[I]f the Wisconsin Lottery cannot legally offer a particular type of gaming or gambling operation as part of the lottery, can such type of game or gambling operation be lawfully included in a state/tribal gaming compact" under IGRA? Because of IGRA's deference to state law on permissible Class TIT gaming and because the state would presumably negotiate compacts with tribes in conformity with the Attorney General's opinion, the answer to the Lottery's question was of critical importance to the future of Indian gaming in Wisconsin.

¶ 17. In February 1990 Attorney General Donald Hanaway concluded that the 1987 amendment authorizing the state to conduct a lottery did not, by its terms, permit the Wisconsin Lottery to engage in any casino-type games. 79 Op. Wis. Att'y Gen. 14 (1990) ("Therefore I conclude that the games allowed to be conducted by the Wisconsin state lottery do not include any of the betting/banking games, such as roulette, blackjack, craps, baccarat, Chemin de fer, and similar casino gambling, and do not include any forms of gambling conducted by the playing of gambling machines such as slot machines, video gambling machines and similar machines and devices."). Id. at 27. Rather, the term "lottery" as it was used in the amendment, only referred to the narrow commonly understood meaning of lottery, which was a distinct type of gambling. Id. at 26.

¶ 18. At the same time, Attorney General Han-away concluded that the Wisconsin Constitution did not prohibit casino-type games. These games, he said, were prohibited only by state criminal statutes. Consequently, the legislature could authorize casino-type games by changing the statutes, Id. at 28-29, and could authorize casino-type gambling. .. "just within Indian country." Id. at 31-32. The Attorney General added: "[I]t is not my responsibility to establish the public policy on gambling in Wisconsin... . [The] policy as it relates to gambling is within the role, responsibility and ability of the Legislature to address as it did in enacting chapters 945 and 565." Id. at 31.

¶ 19. The Hanaway opinion was a hot potato. It effectively precluded the state from agreeing to casino-type gambling for the tribes without explicit approval from the legislature. It simultaneously invited the legislature to approve casino-type gambling for Indians and non-Indians alike, or give the tribes a monopoly by approving casino-type gambling "just within Indian country." Either prospect was troubling to legislators opposed to expanded gambling in Wisconsin. A month later, the legislature approved a bill authored by Representative John Medinger giving the governor authority to negotiate and enter into gaming compacts with the tribes. The bill provided that "The governor may, on behalf of this state, enter into any compact that has been negotiated under 25 USC 2710(d)." Wis. Stat. § 14.035. By its terms, the Medinger bill anticipated compliance with IGRA but passed the negotiation and decision-making on gaming compacts to the governor. Before passage, both houses of the legislature rejected amendments requiring the legislature to ratify these compacts.

¶ 20. The Legislative Reference Bureau (LRB) attorney who drafted Representative Medinger's bill prepared a formal drafter's note in which he stated that any compact entered into must limit games to those authorized under ch. 945 of the Wisconsin Statutes, namely bingo, raffles, the lottery, pari-mutuel wagering, and "crane games" as well as other amusement devices.¹⁰ The LRB attorney disagreed with Attorney General Hanaway because he stated that Article iy Section 24 of the Wisconsin Constitution prohibited "casino-type gambling," and therefore no additional types of games could be authorized under ch. 945 without first amending the constitution. The attorney attached a similar note to an earlier bill, 1989 Senate Bill 331 authored by Senator Lloyd Kincaid. The Kincaid bill served as the model for the Medinger bill.

¶ 21. In November 1990 Attorney General Han-away was defeated for re-election. In May 1991 his successor, Attorney General James E. Doyle, issued a new opinion. The Attorney General wrote:

[T]he term "lottery" throughout article I\£ section 24, refers to any game, scheme or plan comprising prize, chance and consideration.

Under the constitution, the legislature may authorize any type of state-operated lottery subject only to the advertising, use-of-revenue and off-track wagering restrictions. The Legislature may not, however, authorize such lotteries if they are not operated by the state, or fall within the bingo, raffle or on-track, pari-mutuel exceptions. Any other lottery requires an amendment to the constitution.

80 Op. Wis. Att'y Gen. 53, 58 (1991).

¶ 22. The effect of Attorney General Doyle's opinion was to lay the groundwork for casino-type gambling by a state-operated lottery if such gambling were authorized by the legislature, and for casino-type gambling by Indian tribes if such gaming were included in a legislatively authorized or approved compact.

¶ 23. Following the earlier Hanaway opinion, Governor Tommy Thompson had refused to bargain with the tribes over casino games, video games, and slot machines, offering only traditional lotteries and parimutuel on-track betting. This led to an impasse. Six weeks after Attorney General Doyle's opinion was issued, however, the District Court for the Western District of Wisconsin rendered a decision in a suit by two Chippewa bands challenging the state's refusal to bargain over casino games. Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F.Supp. 480 (W.D. Wis. 1991). Judge Barbara Crabb held that the amendments to Article I\£ Section 24, in particular the 1987 amendment authorizing the state to operate a lottery, demonstrated "a state policy toward gaming that is now regulatory rather than prohibitory in nature." Id. at 486 (citing Cabazon, 480 U.S. at 211).

¶ 24. Judge Crabb's opinion drew upon the reasoning in the opinion of Attorney General Doyle. As noted, Attorney General Doyle theorized that when the voters of the state authorized the state to operate a "lottery," they removed any impediment to state operation of games involving the elements of prize, chance, and consideration.¹¹ Thus, the state could potentially operate casinos. 80 Op. Wis. Att'y Gen. 53, 58 (1991) ("There is nothing in the language of the amendment to prohibit legislative authorization of casino-type games."). With this analysis at hand, Judge Crabb concluded that "the state is required to negotiate with plaintiffs over the inclusion in a tribal-state compact of any activity that includes the elements of prize, chance and consideration and that is not prohibited expressly by the Wisconsin Constitution or state law." Id. at 488.¹²

¶ 25. By June of 1992, Governor Thompson reached compact agreements with all eleven federally recognized tribes and bands in the state. Among these compacts was the 1992 compact with the FCP Tribe, which addressed Class III gaming in the following manner:

AUTHORIZED CLASS III GAMING

A. The Tribe shall have the right to operate the following Class III games during the term of this Compact but only as provided in this Compact:

1. Electronic games of chance with video facsimile displays;

2. Electronic games of chance with mechanical displays;

3. Blackjack;¹³ and

4. Pull-tabs or break-open tickets when not played at the same location where bingo is played.

B. The Tribe may not operate any Class III gaming not expressly enumerated in this section of this Compact unless this Compact is amended pursuant to section XXX [providing for amendment of the Compact],

¶ 26. The compact also specified the duration of the agreement. Section XXV states, in relevant part:

XXV Duration

A. This Compact shall be in effect for a term of seven years after it becomes binding on the parties.

B. The duration of this Compact shall thereafter 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.

C. In the event written notice of nonrenewal is given by either party as set forth in this section, the Tribe shall cease all Class III gaming under this Compact upon its expiration date or upon the date of the procedures in subsec. E. are concluded and a successor compact, if any is in effect.

D. The Tribe may operate Class III gaming only while this Compact, or any extension thereof under this section, is in effect.

¶ 27. The compact also provided that the Tribe and the State were not waiving their respective sovereign immunity:

Except as provided [in a section where the Tribe waived its sovereign immunity], neither the State nor the Tribe waive their sovereign immunity, under either state or federal law, by entering into this Compact and no provision of this Compact is intended to constitute a waiver of State or Tribal sovereign immunity.

The gaming compact with the FCP Tribe was completed June 3, 1992, and approved by the U.S. Department of the Interior on August 4, 1992.

¶ 28. In the meantime, work began in the legislature on a new amendment to the constitution to clarify the word "lottery." This amendment was passed by the legislature in 1992 and 1993, and approved by the people in April 1993.

¶ 29. The opening sentence of Article I\£ Section 24, which had prohibited the legislature from authorizing any "lottery," was changed to provide that "[ejxcept as provided in this section, the legislature may not authorize gambling in any form" (emphasis added). Further, the potential scope of the state-operated lottery was expressly narrowed.

¶ 30. Subsection 6 of Article IY Section 24, which defines the parameters of the state-operated lottery, is now arguably the most detailed provision in the constitution. Subsection 6(a) currently reads:

(6) (a) The legislature may authorize the creation of a lottery to be operated by the state as provided by law. The expenditure of public funds or of revenues derived from lottery operations to engage in promotional advertising of the Wisconsin state lottery is prohibited. Any advertising of the state lottery shall indicate the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered. The net proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief for residents of this state as provided by law. The distribution of the net proceeds of the state lottery may not vary based on the income or age of the person provided the property tax relief. The distribution of the net proceeds of the state lottery shall not be subject to the uniformity requirement of section 1 of article VIII. In this paragraph, the distribution of the net proceeds of the state lottery shall include any earnings on the net proceeds of the state lottery.

Wis. Const, art. IY § 6(a). This text predates the 1993 amendment, except for an insignificant modification in 1999.

¶ 31. The 1993 amendment added the following clarifying language:

(b) The lottery authorized under par. (a) shall be an enterprise that entitles the player, by purchasing a ticket, to participate in a game of chance if: 1) the winning tickets are randomly predetermined and the player reveals preprinted numbers or symbols from which it can be immediately determined whether the ticket is a winning ticket entitling the player to win a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game; or 2) the ticket is evidence of the numbers or symbols selected by the player or, at the player's option, selected by a computer, and the player becomes entitled to a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game if some or all of the player's symbols or numbers are selected in a chance drawing or game, if the player's ticket is randomly selected by the computer at the time of purchase or if the ticket is selected in a chance drawing.

(c) Notwithstanding the authorization of a state lottery under par. (a), the following games, or games simulating any of the following games, may not be conducted by the state as a lottery: 1) any game in which winners are selected based on the results of a race or sporting event; 2) any banking card game, including blackjack, baccarat or chemin de fer; 3) poker; 4) roulette; 5) craps or any other game that involves rolling dice; 6) keno; 7) bingo 21, bingo jack, bingolet or bingo craps; 8) any game of chance that is placed on a slot machine or any mechanical, electromechanical or electronic device that is generally available to be played at a gambling casino; 9) any game or device that is commonly known as a video game of chance or a video gaming machine or that is commonly considered to be a video gambling machine, unless such machine is a video device operated by the state in a game authorized under par. (a) to permit the sale of tickets through retail outlets under contract with the state and the device does not determine or indicate whether the player has won a prize, other than by verifying that the player's ticket or some or all of the player's symbols or numbers on the player's ticket have been selected in a chance drawing, or by verifying that the player's ticket has been randomly selected by a central system computer at the time of purchase; 10) any game that is similar to a game listed in this paragraph; or 11) any other game that is commonly considered to be a form of gambling and is not, or is not substantially similar to, a game conducted by the state under par. (a). No game conducted by the state under par. (a) may permit a player of the game to purchase a ticket, or to otherwise participate in the game, from a residence by using a computer, telephone or other form of electronic, telecommunication, video or technological aid.

Wis. Const, art IV, § 6(b-c). The specificity of this language is self-evident.¹⁴ Wis. Const. art. IV, § 24 (as amended 1965, 1973, 1977, 1987, 1993, and 1999).

¶ 32. The initial compacts were set to run out between February 1998 and March 1999. Governor Thompson reached agreements with the state's tribes to renew the compacts for five years. Acting pursuant to Wis. Stat. § 14.035, Governor Thompson also agreed to amend certain substantive provisions of the compacts. For instance, the 1998 amendments to the FCP Gaming Compact permitted the FCP Tribe to increase the number of slot machines from 200 to 1000 and permit blackjack at the Tribe's Menomonee Valley land location. However, the 1998 amendments did not grant the FCP permission to operate additional types of games;¹⁵ nor did they alter the sovereign immunity and renewal provisions of the compact providing for automatic rollover, or, conversely, an opportunity for either party to withdraw from the compact with proper notice.

¶ 33. On February 19,2003, as the second term of the compact was nearing completion, Governor Doyle agreed to new amendments to the 1992 Gaming Compact (as amended in 1998) with the FCP Tribe. On April 2, 2003, the petitioners responded to some of these amendments by filing a petition for original action. Two days later, the Governor signed a second amendment.¹⁶ On May 30, the Governor agreed to a third set of amendments — the so-called Technical Amendments.¹⁷

¶ 34. The sum effect of these amendments is substantial. First, the Compact as amended clears the way for the FCP Tribe to conduct a number of casino games that have never been legal in Wisconsin, such as keno, roulette, craps, and poker. The amendments add the following games to the enumerated list of Class III games found in the original version of the Gaming Compact:

Variations on the game of Blackjack, including, but not limited to, Spanish 21 and additional wagers offered in the game of blackjack, including additional wagers, multiple action blackjack, bonus wagers, and progressive blackjack wagers;

Pari-mutuel wagering on live simulcast horse, harness, and dog racing events;¹⁸

Electronic keno; and

The game of roulette, the game of craps, the game of poker and similar non-house banked card games, and games played at Blackjack style tables, such as Let it Ride, Casino Stud, and Casino War.

¶ 35. Second, the compact as amended repeals in its entirety the duration provisions that permitted an automatic rollover of the compact every five years, with either the State or the FCP having the right to nonre-new. The section replacing these deleted provisions now reads as follows:

This Compact shall continue in effect until terminated by mutual agreement of the parties, or by a duly adopted ordinance or resolution of the Tribe revoking the authority of the Tribe to conduct Class III gaming upon its lands, as provided for in Section 11(d)(2)(D) of [IGRA].

(Emphasis added).

¶ 36. Third, the compact as amended adds an entirely new dispute resolution process, including the following provision regarding liquidated damages:

If the State fails to comply with an award of the tribunal, other than an award to pay money to the Tribe, and asserts the State's sovereign immunity, then the tribunal, upon the application of the Tribe, may issue an order requiring the State to pay the Tribe a sum of money as liquidated damages that the tribunal determines is commensurate with the value of the loss to the Tribe due to the inability of the Tribe to obtain judicial enforcement of the Compact provision which is the subject of the award and that is commensurate with the State's failure to comply with the award. The sum due to the Tribe under the order is a debt of the State, which may be recovered by the Tribe, unless the State complies with the award or a federal court sets aside the award on grounds set forth in 9 U.S.C. § 10. This paragraph shall not apply if the legislature of the State of Wisconsin ratifies the State's waiver of sovereign immunity in Section XXIII or waives the State's sovereign immunity for judicial enforcement of all arbitration awards entered under Section XXII.

¶ 37. Fourth, the 1992 compact provision, explicitly providing that the state was not waiving its sovereign immunity, was replaced in part by the following section:

The Tribe and the State, to the extent the State or the Tribe may do so pursuant to law, expressly waive any and all sovereign immunity with respect to any claim brought by the State or the Tribe to enforce any provision of this Compact. This waiver includes suits to collect money due to the State pursuant to the terms of the Compact; to obtain an order to specifically enforce the terms of any provision of the Compact, or to obtain a declaratory judgment and/or enjoin any act or conduct in violation of the Compact. Nothing contained herein shall be construed to waive the immunity of the Tribe, except for suits arising under the terms of this Compact. This waiver does not extend to other claims brought to enforce other obligations that do not arise under the Compact or to claims brought by parties other than the State and the Tribe. In addition, the State agrees that State officials and employees may not engage in unauthorized activity. State officials and employees are not authorized under law to engage in activity that violates the terms of the Compact; that violates an arbitration award entered under Section XXII; or with respect to subject matters governed by the Compact, that is not authorized by the Compact. The Tribe may maintain a suit against State officials, agents, or employees to prevent unauthorized activity without regard to whether or not the State has waived its sovereign immunity.¹⁹

DISCUSSION

¶ 38. Several amicus curiae have filed briefs stressing the positive impact of Indian gaming on Wisconsin tribes as well as local economies and local governments. 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.

¶ 39. 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. Department of Administration, 216 Wis. 2d 521, 529, 576 N.W.2d 245 (1998).

¶ 40. This is not to say that the legal and practical consequences of our opinions are not considered. We are mindful that this decision will require both a renegotiation of certain compact terms and a reconsideration of the Wisconsin state budget. At the same time, the decision does not invalidate any gaming rights the FCP Tribe had as of the 1998 amendments. In addition to those rights, this decision permits pari-mutuel wagering on live simulcast horse, harness, and dog racing events and does not prohibit additional sites. Consequently, the dissent's forecast of gloom and doom is not well taken. 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.

A. Affirmative Defenses

¶ 41. The Governor seeks to shield petitioners' claims from review by interposing two procedural objections or "affirmative defenses." See State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988). Specifically, the Governor posits that (1) the petitioners lack standing to challenge his actions; and (2) this litigation should be dismissed for failure to join an indispensable party, namely, the FCP Tribe. Were we to accept either of the Governor's "defenses," we could not hear this case and would abdicate our "duty to resolve disputes regarding the constitutional functions of different branches of state government." Id.

¶ 42. As to standing, the crux of the petitioners' claim is that the Governor exceeded his authority and impinged upon the core power and function of the legislature. The petitioners are members of the legislative leadership. If Senator Panzer, as Majority Leader of the Senate, and Representative Gard, as Speaker of the Assembly, acting in concert with the Joint Committee on Legislative Organization, lack standing to assert a claim that the Governor acted to deprive the legislature of the ability to exercise its core function in a specific subject area, then no one in the legislature could make such a claim, and no one outside the legislature would have an equivalent stake in the issue. We disagree with the proposition that petitioners do not have a significant stake in representing the legislative branch when there is a claimed breach of the separation of powers. This conclusion is consistent with our treatment of standing in Wisconsin Senate v. Thompson.

¶ 43. As to the ability to proceed in the absence of the FCP Tribe, it is undisputed that "[u]nless Congress provides otherwise, Indian tribes possess sovereign immunity against the judicial processes of states." Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047, 1057 (N.Y. 2003) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 15 (1978); United States v. United States Fid. & Sav. Guar. Co., 309 U.S. 506, 512 (1940); Turner v. United States, 248 U.S. 354, 358 (1919)). As such, the FCP Tribe cannot be compelled to appear in these proceedings, and it has opted not to intervene.

¶ 44. 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 its 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.²⁰

¶ 45. 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. See Wisconsin Senate, 144 Wis. 2d at 436 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803)). 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.

B. Scope of the Governor's Authority

¶ 46. The petitioners allege that the Governor violated the separation of powers. They assert that the Governor, the chief constitutional officer of Wisconsin's executive branch, was without authority (1) to commit the state to perpetual compacts with the FCP Tribe; (2) to agree to games prohibited by the 1993 amendment to the Wisconsin Constitution; (3) to waive the state's sovereign immunity; and (4) to commit the state to future appropriations. Each of these issues will be addressed in turn.

1. Separation of Powers Principles

¶ 47. The petitioners frame their cause as an effort to restore constitutional equipoise in the wake of the Governor's actions, which they contend are tantamount to a usurpation of legislative authority. The petitioners claim the Governor lacked either inherent or delegated power to agree to certain compact terms on behalf of the state. The petitioners also imply that, if the legislature's delegation of power to Wisconsin governors is as broad as the Governor asserts, then the delegation is unconstitutional. Before addressing the substance of the arguments, we will set forth the applicable principles that guide our analysis.

¶ 48. Our state constitution has created three branches of government, each with distinct functions and powers. The separation of powers doctrine is implicit in this tripartite division of government. Flynn, 216 Wis. 2d at 545 (collecting cases). "There are zones of authority constitutionally established for each branch of government upon which any other branch of government is prohibited from intruding." Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990).

¶ 49. In reality, governmental functions and powers are too complex and interrelated to be neatly compartmentalized. For this reason, we analyze separation of powers claims not under formulaic rules but under general principles that recognize both the independence and interdependence of the three branches of government.

¶ 50. The principles we turn to, when faced with a claim that one branch has seized power reserved to another, were stated in the Flynn case:

Each branch has exclusive core constitutional powers, into which the other branches may not intrude. See [State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995)] (citing State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990)). Beyond these core constitutional powers lie " '[g]reat borderlands of power'" which are not exclusively judicial, legislative or executive. See id. at 14. While each branch jealously guards its exclusive powers, our system of government envisions the branches sharing the powers found in these great borderlands. See id. Ours is a system of" 'separateness but interdependence, autonomy but reciprocity.'" Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)). When the powers of the branches overlap, one branch is prohibited from unduly burdening or substantially interfering with the other. See Friedrich, 192 Wis. 2d at 14.

Flynn, 216 Wis. 2d at 545-46.

¶ 51. These principles acknowledge that under Wisconsin's constitution, powers may be shared between and among branches, so long as the power at issue is not a "core" power reserved to one branch alone. Thus, in a typical separation of powers dispute, the first order of business is to identify whether the power one branch is accused of usurping is a core power or a shared power.

¶ 52. The seizure of power by one branch from another is not the only concern in the separation of powers. Under the nondelegation doctrine, one branch of government may delegate power to another branch, but it may not delegate too much, thereby fusing an overabundance of power in the recipient branch. The concern about excessive delegation is that an improper concentration of power in one branch will undermine the checks and balances built into our system of government. Checks and balances are designed to promote government accountability and deter abuse. The breakdown of checks and balances tends to make government power unaccountable. The excessive delegation of power may also result in a ceding of power that the donor branch may be unable to reclaim.

¶ 53. This court addressed the issue of whether the legislature had delegated too much power to an executive branch agency in Gilbert v. Medical Examining Board, 119 Wis. 2d 168, 349 N.W.2d 68 (1984). The court recognized that "delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government," id. at 184 (collecting cases), and upheld an admittedly "broad grant of legislative power" to the Medical Examining Board, reversing a court of appeals' determination that the delegation lacked adequate standards. Id. at 190. In doing so, we reviewed the history of the nondelegation doctrine in Wisconsin.

¶ 54. In this court's early delegation cases, our focus was on the nature of the delegated power. Id. at 185 (citing State ex rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 472, 505-06, 220 N.W. 929 (1928)). We indicated that the legislature delegated power lawfully when it "laid down the fundamentals of a law," such that the recipient of the delegated power was merely filling in the details. Id. (citing Whitman, 196 Wis. at 505-06). Recently, however, the court has focused less on the nature of the delegated power and more on the adequacy of procedural safeguards attending the delegation, so as to prevent arbitrariness in the exercise of the power.²¹ Id. at 185-86.

¶ 55. This is not to say that the nature of delegated power no longer plays a role injudicial review of legislative delegations. We normally review both the nature of delegated power and the presence of adequate procedural safeguards, giving less emphasis to the former when the latter is present. In a case involving delegation to an administrative agency, we said: "A delegation of legislative power to a subordinate agency will be upheld if the purpose of the delegating statute is ascertainable and there are procedural safeguards to insure that the board or agency acts within that legislative purpose." Id. (quoting Westring v. James, 71 Wis. 2d 462, 238 N.W.2d 695 (1976)). Thus, the nondelegation doctrine with respect to subordinate agencies is now primarily concerned with the presence of procedural safeguards that will adequately assure that discretionary power is not exercised unnecessarily or indiscriminately. Id. at 185 (citing 1 Kenneth Culp Davis, Administrative Law Treatise § 3.15 at 206-07 (2d ed. 1978)).

¶ 56. This deference is readily understandable when the legislature delegates power to an administrative agency because the agency is a creation of the legislature itself. Id. at 186 (citing Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46, 56-57, 158 N.W.2d 306 (1968)). The "very existence" of the agency is dependent upon the will of the legislature. Its powers, duties, and scope of authority may be fixed and circumscribed by the legislature and made subject to legislative changes. Id. (citing Schmidt, 39 Wis. 2d at 56-57). Rules promulgated by the agency may be suspended by the legislature. Wis. Stat. § 227.26(2)(d). If the legislature attempts to change the authority of the agency but fails to do so because of a successful gubernatorial veto, the legislature may decline to confirm appointees and refuse to appropriate funds for the agency.

¶ 57. The court has adopted a stricter standard when the legislature delegates power directly to another branch of government. Gilbert, 119 Wis. 2d at 186 (citing Schmidt, 39 Wis. 2d at 56-57). What may seem an adequate procedural safeguard for a delegation of power to an administrative agency may be wholly inadequate when power is delegated directly to another branch of government.

¶ 58. The delegation of power to a sister branch of government must be scrutinized with heightened care to assure that the legislature retains control over the delegated power, much like the legislature exercises inherent control over state administrative agencies. In Martinez v. DILHR, we upheld a statute empowering the legislature's Joint Committee for Review of Administrative Rules to temporarily suspend an administrative rule pending legislative review and presentment of legislation to the governor. Martinez v. DILHR, 165 Wis. 2d 687, 691, 478 N.W.2d 582 (1992). In doing so, we noted that "it is incumbent on the legislature, pursuant to its constitutional grant of legislative power, to maintain some legislative accountability over rule-making. Such legislative responsibility adheres to the fundamental political principle and design of our democracy which makes elected officials accountable for rules governing the public welfare." Id. at 701 (emphasis added). Examining this precedent in light of the added scrutiny for delegations directly to another branch of government, it is crucial for the legislature to preserve the right to exercise some degree of control over the delegated power.

¶ 59. The petitioners describe the Governor's action in agreeing to certain gaming amendments as a usurpation of legislative power. It is obvious, however, that by enacting Wis. Stat. § 14.035, the legislature assigned the task of entering into gaming compacts with Indian tribes to Wisconsin's governor. No one contests the applicability of this statute. Since this case involves a statute forthrightly delegating legislative authority to the Governor, the Governor's action should not be analyzed as an uninvited usurpation of legislative power. This case involves a legislative transfer of power to a different branch. Accordingly, the facts should be viewed through the prism of Wisconsin's nondelegation doctrine.

2. Delegation of Legislative Authority in Section 14.035

¶ 60. Wisconsin Stat. § 14.035 reads that: "The governor may, on behalf of this state, enter into any compact that has been negotiated under 25 USC 2710(d)." Petitioners have framed their argument in a manner that avoids challenging the constitutionality of this statute. At the same time, they imply that if we interpret the delegation in this statute as broadly as the Governor requests, the delegation is unconstitutional. Clearly, the validity of § 14.035 permeates this case. We acknowledge the legislature's exceptionally broad delegation of power to the Governor but conclude that, subject to certain implicit limits, § 14.035 is not unconstitutional beyond a reasonable doubt.²²

¶ 61. In reviewing the legislature's extremely broad delegation of power, it is important to identify who possessed the authority to enter into gaming compacts on behalf of the state before the enactment of § 14.035. If this authority was already vested in Wisconsin governors, then § 14.035 could not be an unconstitutional delegation, for it would be no delegation at all. The legislature cannot delegate a power that it does not have.

¶ 62. When courts in other jurisdictions have dealt with this question, most have concluded that, under state law, a governor does not possess unilateral authority to reach binding compacts with tribes on behalf of the state. See American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1072 (D. Ariz. 2001), vacated on other grounds, 305 F.3d 1015, 1018 (9th Cir. 2002) (holding that under Arizona's strict constitutional separation of powers principles, legislature could not broadly delegate compacting authority to Arizona's governor);²³ Kansas ex rel. Stephan v. Finney, 836 P.2d 1169, 1185 (Kan. 1992) (holding that governor had neither inherent nor delegated authority to sign compacts on behalf of state); New Mexico ex rel. Clark v. Johnson, 904 P.2d 11, 23 (N.M. 1995) (same); Pataki, 798 N.E.2d at 1061 (same); Narragansett Indian Tribe of Rhode Island v. Rhode Island, 667 A.2d 280, 282 (R.I. 1995) (same). These courts concluded that entering into a tribal-state compact under IGRA, thereby committing the state to a particular position with respect to Indian gaming, involves subtle and important decisions regarding state policy that are at the heart of legislative power.²⁴

¶ 63. We believe these cases are better reasoned or distinguishable from two United States District Court cases holding that a governor may unilaterally sign a gaming compact and bind the state. See Willis v. Fordice, 850 F. Supp. 523 (S.D. Miss. 1994); Langley v. Edwards, 872 F. Supp. 1531 (W.D. La. 1995). Of course, Arizona, Kansas, New Mexico, New York, and Rhode Island may allocate power among the branches in a manner different from Wisconsin.

¶ 64. Nonetheless, we agree with the consensus among courts that have looked at the issue, that committing the state to policy choices negotiated in gaming compacts constitutes a legislative function. Consequently, we conclude that, in the absence of § 14.035, the power to enter into compacts under IGRA, would reside with Wisconsin's legislative branch.

¶ 65. Returning to the statute, § 14.035 indisputably delegates a broad and expansive power to the Governor. The statute is presumed constitutional. A court will strike down a statute only when it is shown to be unconstitutional beyond a reasonable doubt. Friedrich, 192 Wis. 2d at 13 (citing State v. Holmes, 106 Wis. 2d 31, 41, 315 N.W.2d 703 (1982)). Where the constitutionality of a statute is at issue, courts attempt to avoid an interpretation that creates constitutional infirmities. See State v. Popanz, 112 Wis. 2d 166, 172, 332 N.W.2d 750 (1983) (citing State ex rel. Ft. Howard Paper v. Lake Dist. Board, 82 Wis. 2d 491, 505, 263 N.W.2d 178 (1978)). Courts must apply a limiting construction to a statute, if available, to eliminate the statute's overreach, while maintaining the legislation's constitutional integrity. Lounge Management, Ltd. v. Town of Trenton, 219 Wis. 2d 13, 26, 580 N.W.2d 156 (1998).

¶ 66. On its surface, this statute does not express clear policy objectives or include explicit procedural safeguards. However, the court has an obligation to dig beneath the surface when the constitutionality of a statute hangs in the balance.

¶ 67. The ascertainable purpose of the statute is to designate our governor as the state's lead negotiator on Indian gaming compacts and to permit the governor to bind the state once agreement has been reached. The Governor acknowledges that "the power to execute a contract binding the state must be granted by the legislature," and § 14.035 constitutes that grant. This is an expedient solution to the quandary of who should act on behalf of the state in gaming negotiations. Legislative silence on this topic has led to litigation in other states. Stephan, 836 P.2d 1169; Clark, 904 P.2d 11; Saratoga County, 798 N.E.2d 1047; Narragansett Indian Tribe, 667 A.2d 280. Thus, the experience in other states suggests that the legislature acted logically by vesting the authority to act on behalf of the state in the governor.

¶ 68. The Governor reasons that the power delegated to him must be exercised in conformity with IGRA because § 14.035 incorporates 25 U.S.C. § 2710(d) by reference, and this IGRA provision lists various compact terms that may be included in the compact.

¶ 69. In addition, the Governor notes that the legislature has affirmed the governor's role in compact negotiations by creating a director of Indian gaming in the Department of Administration and providing that the director shall advise the governor "on any Indian compacts that may be entered into under § 14.035" and assist "the governor in determining the types of gaming that may be conducted on Indian lands and in entering into Indian gaming compacts." Wis. Stat. §§ 569.015 and 569.02(4). The Governor argues that these statutes affirm the prior delegation and demonstrate support of the Governor's delegated responsibility.

¶ 70. As we see it, the legislature did not provide guidance in § 14.035 as to terms it desired or terms it opposed, although limits to the gaming compacts are implied by the existence of other statutes. The absence of guidelines underscores the importance of procedural safeguards. So long as the legislature retains the power to act on Indian gaming, there are procedural safeguards to assure that the governor acts "within that legislative purpose." Gilbert, 119 Wis. 2d at 186 (quoting Westring, 71 Wis. 2d 462). What are the safeguards?

¶ 71. First, apart from the extraconstitutional techniques of leverage and communication between branches, the legislature retains the power to repeal § 14.035 if it is able to muster enough votes to override a gubernatorial veto. This blunt instrument could recapture the power delegated to the governor. Second, the legislature may seek to amend § 14.035 to require the ratification of compact extensions or amendments, direct the governor to seek specific terms, or express a desire to nonrenew. Finally, the legislature may appeal to public opinion. The governor of Wisconsin is a highly visible public official and the governor's decisions on Indian gaming will attract the attention of the public and the news media. If the governor makes a policy choice that is unacceptable to the people, the governor will be held accountable to the people.

¶ 72. In sum, although the statute is not a model of legislative delegation, its purpose is ascertainable, and in most situations there are safeguards available to alter the policy choices made by the governor. Consequently, the statute is not unconstitutional beyond a reasonable doubt.

3. Duration Provision

¶ 73. Upholding the constitutionality of the statute does not automatically validate every compact term negotiated by a governor under the statute.

¶ 74. Before the 2003 amendments, the FCP Gaming Compact provided that the state or the FCP Tribe could serve a written notice of nonrenewal on the other party, so long as it did so at least 180 days before the existing term expired. If the requisite notice of nonrenewal were provided, the FCP Gaming Compact would expire at the end of that five-year term. Conversely, if no notice were given, the compact would automatically renew for another five years, with the parties capable of negotiating amendments.

¶ 75. The 2003 amendments repeal these provisions. Under the terms of the 2003 amendments, the state gives up the right to periodically withdraw from the FCP Gaming Compact.²⁵ In fact, if the new duration provision is found in some manner to be unenforceable or invalid — that is, if the state is legally able to repudiate the substance of the new duration provision — the state could become obligated to pay the tribe millions of dollars.²⁶ Because the state would pay a heavy financial price if it were able to lawfully and unilaterally repudiate the duration provision, the refund provision of the 2003 amendments resembles a sort of poison pill, akin to what one might encounter in the world of corporate takeovers.²⁷ If the duration provision were somehow voidable, the financial penalty attending success in voiding it provides a serious barrier to pursuing that remedy.

¶ 76. The petitioners suggest that the Governor has irrevocably bound future legislatures and future governors, and as a result, has intruded upon the core powers of one branch and surrendered the core powers of the other to make or initiate policy, violating separation of powers principles. They assert that the Governor exercised power that he is constitutionally forbidden to exercise, even if the legislature intended to give him such power. According to the petitioners, the Governor has neither inherent nor delegated authority to agree to compact terms that place matters of public policy and statecraft outside of the legislature's ability to influence.

¶ 77. The Governor, however, asserts that giving up the periodic right to unilaterally withdraw from the FCP Gaming Compact does not offend the principles of separation of powers. The Governor relies on § 14.035 to support his position that the legislature intended him to exercise full discretion with respect to any Indian gaming compact negotiated under IGRA, and therefore also intended that he be given free rein to agree to compacts of whatever duration he deems reasonable. Moreover, the Governor points to similar agreements that demonstrate, as a general matter, that terms such as he negotiated in 2003 are not inherently unreasonable. For instance, the Governor directs our attention to interstate compacts as well as state-tribal gaming compacts from other states, both of which yield examples of states binding themselves to compacts of indefinite duration without any unilateral right to withdraw.

¶ 78. We agree with the petitioners that the Governor did not have the authority to commit the state to the type of duration term set forth in the 2003 amendments. However, we do not fully subscribe to the petitioners' rationale. The concern is not principally with the nature of the power given up.²⁸ The concern is that the Governor unexpectedly gave away power delegated to him so that the legislature cannot take it back. This action circumvents the procedural safeguards that insure that delegated power may be curtailed or reclaimed by future legislative action.

¶ 79. Under Wisconsin's contemporary nondel-egation doctrine, the nature of the power delegated to another branch is not the primary focus of judicial review. The presence of adequate procedural safeguards is the paramount consideration.²⁹ If the Governor's action with respect to the duration term were allowed to stand, all the procedural safeguards that might possibly rein in the Governor's authority would be ineffective. The legislature would be powerless to alter the course of the state's position on Indian gaming by repealing or amending § 14.035.³⁰ The electorate might be able to voice its displeasure, and the Governor might in theory pay a heavy political price, but the voters would be powerless to elect a governor- who could impact the terms that had already been agreed to.

¶ 80. The Governor responds that other states have agreed to compacts with indefinite terms in which states have given up the right to unilaterally withdraw. The parties have stipulated that Colorado, Connecticut, Idaho, Kansas, Minnesota, and Mississippi all have such provisions. However, without appellate decisions from these states approving of the process by which these terms were reached, we are unable to speculate as to whether these indefinite compacts comport with the law of their respective jurisdictions, much less Wisconsin. Simply stated, without more information, it is impossible to conclude that the processes by which these compacts were agreed to would withstand scrutiny in this state.

¶ 81. The Governor also compares compacts under IGRA to interstate compacts, many of which have binding terms of indefinite duration. Indeed, "[a]n interstate compact is an exception to the rule that one legislature may not restrict its successors." Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problem of Permanency, 49 Fla. L. Rev. 1, 2 (1997). However appropriate or inappropriate it is to import the principles of interstate compacts into the tribal gaming compact area,³¹ the fact that a state may, under the federal constitution, bind itself to another state as a matter of federal law,³² does not mean that a governor may bind the state to a gaming compact with an Indian tribe indefinitely and without notice to or approval by the legislature. Further, while the Governor notes that "Wisconsin itself is a signatory to an interstate compact of indefinite duration, the Midwest Interstate Low-level Radiation Waste Compact," we understand that the legislature ratified this compact. Wis. Stat. § 16.10; see also § 14.76 (authorizing state agencies to "agree" to "compacts" not affecting the sovereignty of the United States, but subjecting such agreements to a legislative approval requirement before the agreements become effective); 5 Wisconsin Statutes: Appendix 6123 (2001-02) (listing active Interstate Compacts to which Wisconsin is a party, all of which have been ratified by the legislature).

¶ 82. We conclude that the legislature has not delegated to the Governor the authority to agree to a duration provision that circumvents the procedural safeguards that sustain the legislature's ability to delegate that power in the first place. We think it is extremely unlikely that, in the factual and legal atmosphere in which § 14.035 was enacted, the legislature intended to make a delegation that could terminate its ability to make law in an important subject area. See ¶¶ 19-20, supra.³³ If such a far-reaching delegation were in fact intended, the delegation would be unconstitutional. The power to enter into tribal-state compacts under IGRA is legislative, and the Governor has no inherent authority to agree to bind the state. Without inherent authority, and in the absence of legislative delegation, the Governor was without authority to agree to the duration provision under the 2003 amendments.

4. Expansion of Permissible Class III Gaming

¶ 83. Under the 2003 amendments, the Governor agreed to several new Class III games such as keno, roulette, craps, and poker. The petitioners assert that the Governor lacked the authority to agree to new games that are expressly prohibited to the Wisconsin Lottery by the 1993 constitutional amendment to Article iy Section 24.

¶ 84. Originally, petitioners argued that the Governor, acting alone under § 14.035, could not agree to the expansion of games in the FCP Gaming Compact. This was a traditional separation of powers argument. They expressly declined to take a position on whether the legislature alone, or acting in concert with the Governor, could have agreed to games prohibited to the Wisconsin Lottery under the 1993 constitutional amendment. Although we understand that petitioners did not want to constrain the legislature vis-a-vis future gaming negotiations in which it might participate, petitioners' reluctance to take a position prompted us to request additional briefs on the question whether Article IY Section 24 made certain games uncom-pactable as a matter of Wisconsin law, thereby prohibiting any Wisconsin actor from agreeing to such games in an Indian gaming compact. Petitioners now concede that Article IY Section 24 acts as a limitation on both the legislature and the governor, so that if one is prohibited by the provision, so is the other.

¶ 85. The Governor makes this same concession, stating "[I]f the Constitution prohibits the state from entering into compacts allowing certain games, it matters not whether the compact is approved by the executive branch or the legislative branch — or both, acting together. No branch of government may violate the Constitution."

¶ 86. The text of the constitution is absolutely clear: "Except as provided in this section, the legislature may not authorize gambling in any form." Wis. Const, art. IY § 24 (emphasis added). Nothing in section 24 authorizes electronic keno, roulette, craps, and poker. These games are specifically denied to the Wisconsin Lottery. Wis. Const. art. IV, § 24(6)(c).³⁴

¶ 87. Nonetheless, the Governor believes that Article iy Section 24 does not prevent the state from entering into a compact for additional types of games.³⁵ He contends that state law is not the last word on permissible Class III gaming. State law, he argues, exerts only an indirect influence on Indian gaming, that being the games the state is required to negotiate. As we understand the Governor's position, he believes Congress has empowered states to agree to games beyond the games the state is required to negotiate.

¶ 88. In American Greyhound, a United States District Court concluded that IGRA does not permit a state to enter into compacts authorizing tribes to engage in gaming otherwise prohibited by state law. 146 F. Supp. 2d at 1067-68. Although this decision was subsequently vacated by the Ninth Circuit on other grounds, 305 F.3d 1015 (9th Cir. 2002), its analysis is persuasive. The court said:

The court reads the [Arizona governor's] brief to assert that IGRA should be understood to require, at a minimum, a compact permitting tribes to engage in any class III gaming the State permits "for any person for any purpose." The minimum idea is crucial. The Plaintiffs, on the other hand, maintain that IGRA prohibits gaming under tribal-state compacts if such gaming is not permitted under state law. The Plaintiffs argue that Congress did not intend to create "jurisdictional islands" where community norms — as expressed in state law — are not enforced.

The court conceives this question as whether IGRA establishes a ceiling for compact terms, or a floor. That is, whether IGRA permits states to offer only such games that are legal for any person for any purpose (a ceiling), or whether IGRA requires states to offer tribes terms equal to those granted their own citizens, plus allows states to agree to any additional gaming (a floor). For the reasons that follow, the court believes a ceiling view is mandated.

146 F. Supp. 2d at 1067 (record citations and footnote omitted).

¶ 89. The court discussed the structure of IGRA, then stated: "According to the structure of § 2710(d)(1) and its plain terms, a compact cannot make legal class III gaming not otherwise permitted by state law. The State must first legalize a game, even if only for tribes, before it can become a compact term." Id. (emphasis added). Other courts have come to similar conclusions. See United States v. Santee Sioux Tribe of Nebraska, 135 F.3d 558, 564 (8th Cir. 1998); Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir. 1993); United States v. Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, 33 F. Supp. 2d 862 (C.D. Cal. 1998)); Hotel Employees and Restaurant Employees International Union v. Davis, 981 P.2d 990 (Cal. 1999).

¶ 90. This conclusion is consistent with the 1990 opinion of Attorney General Hanaway, who opined that the Wisconsin constitution, in 1990, permitted the legislature to approve casino-type gambling "just within Indian country." Of course, any legislative authority the legislature had in 1990 was sharply curtailed by the 1993 amendment.

¶ 91. Neither the "ceiling" view nor the "floor" view of IGRA authorizes any state actor to create a monopoly for Indian tribes by superseding, disregarding, or violating fundamental state law. The only obligation that states have under IGRA springs from 25 U.S.C. § 2710(d)(1)(B), which is the same provision setting forth the scope of lawful gaming activity on Indian lands. Section 2710(d)(1)(B) provides that "[c]lass III gaming activities shall be lawful on Indian lands only if such activities are [among other requirements] (B) located in a State that permits such gaming for any purpose by any person, organization, or entity" Id. (emphasis added). Thus, under IGRA, there are in essence two categories of Class III games: those over which a state must negotiate with a tribe and those that are illegal to negotiate. Those games over which a state must negotiate are games permitted "for any purpose by any person, organization, or entity," including games permitted, by law, exclusively for tribes.

¶ 92. Thus, regardless of how one frames the question, the ultimate inquiry focuses on the "permits such gaming" language in 25 U.S.C. § 2710(d)(1)(B). Until very recently, the Lac du Flambeau case was the only case concluding that, once a state regulates one form of Class III gaming, the state must negotiate over all forms of Class III gaming.³⁶ Compare Lac du Flam-beau, 770 F. Supp. at 486 with Rumsey Indian Rancheria of Wintun Indians v. Wilson, 41 F.3d 421, 427 (9th Cir. 1994), amended, 64 F.3d 1250 (9th Cir. 1995) and 99 F.3d 321 (9th cir. 1996) ("IGRA does not require a state to negotiate over one form of Class III gaming activity simply because it has legalized another, albeit similar form of gaming."); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir. 1993) ("The 'such gaming’ language of 25 U.S.C. § 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming it does not presently permit. Because video keno and traditional keno are not the same and video keno is the only form of keno allowed under state law, it would be illegal, in addition to being unfair to the other tribes, for the tribe to offer traditional keno to its patrons."); Hull, 146 F. Supp. at 1067, vacated on other grounds, 305 F.3d 1015, 1018 (9th Cir. 2002) (holding that compact cannot authorize forms of gaming not otherwise legal in state); Coeur d'Alene Tribe v. Idaho, 842 F. Supp. 1268, affirmed, 51 F.3d 876, 876 (9th Cir. 1995) (holding that state was required to negotiate only with respect to specific Class III games that were permitted in the state). Accordingly, the continued vitality of Lac du Flambeau's holding is very doubtful, and the decision's statements regarding Wisconsin's policy toward gaming have been seriously undercut by the 1993 amendment to Article iy Section 24.³⁷

¶ 93. Unlike the expansive interpretation of the term "lottery" that was at least plausible before 1993, see Lac du Flambeau, 770 F. Supp. at 486, our constitution is now quite clear that the legislature may not authorize any gambling except that permitted by Article IY Section 24, and is very clear that certain games do not fall under the term "lottery" in Article IV, Section 24(6). The constitution is now specific about what the state-operated lottery may do and what it may not do. Blackjack and other varieties of banking card games, poker, roulette, craps, keno and slot machines are all games specifically outside the scope of Section 24(6)'s authorized exception, and they do not come within any other exception. Wis. Const. Art. IY § 24(6)(c). Thus, the legislature may not authorize new casino-type gambling in any form. No exception to the state constitution can be marshaled to support legislative authorization of new casino-type gambling to Indian tribes. The Tribe's existing games such as slot machines and blackjack must be sustained on the basis of the validity of the original compacts, which were negotiated pursuant to court order before the 1993 constitutional amendment, as well as constitutional and contract law.

¶ 94. Article IY Section 24 embodies a strong state policy against gambling. It prohibits the legislature from authorizing gambling in any form except as permitted in the constitution. Wis. Const. Art. IY § 24(1). This policy is enforced in ch. 945's criminal statutes.

¶ 95. We might engage in analysis of whether Article IY Section 24 is self-executing. See Kayden, 34 Wis. 2d at 724. 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.

¶ 96. In any event, the legislature has not repealed the gambling statutes in ch. 945. Hence, the Governor's agreement to the additional games of keno, roulette, craps, and poker in 2003 was contrary to criminal/prohibitory sections of state law in addition to the constitution. It is beyond the power of any state actor or any single branch of government to unilaterally authorize gaming activity in violation of the policy in Wisconsin's criminal code. The governor may not carve out exceptions to the state's criminal statutes unilaterally. We are unable to conclude that the legislature delegated such power or could delegate such power in light of the 1993 constitutional amendment.

¶ 97. Article V, Section 4 of the constitution directs that the governor "take care that the laws be faithfully executed." Accordingly, we conclude that the Governor acted without authority by agreeing to games that are, as reflected in our state's criminal statutes and reinforced by its constitution, prohibited to everyone in the state. The new casino-style games the Governor agreed to in 2003 are expressly forbidden by statute. Thus, the Governor was without authority to agree, on behalf of the state, to add variations on blackjack, electronic keno, roulette, craps, poker, and other non-house banked card games under the 2003 Amendments to the FCP Gaming Compact. By contrast, the Governor was clearly authorized to agree to pari-mutuel wagering on live simulcast horse, harness and dog racing, because this is an activity permitted in Wisconsin. See Wis. Stat. § 562.057.

¶ 98. Our holding today raises inevitable questions about the validity of the original 1992 FCP Gaming Compact and the 1998 amendments thereto. Clearly, the 1992 Compact encompasses games that were and are precluded under our state's criminal statutes.³⁸

¶ 99. The 1992 Gaming Compact was negotiated under a constitutional § 14.035, and pursuant to an order of the United States District Court. An action to challenge the substance of the Lac du Flambeau decision in this court was unavailing, and that case is over. Both the tribes and the state have relied on the validity of the original compacts. Any attempt at this point to impair these compacts would create serious constitutional questions.

¶ 100. Two pieces of legislation signal legislative approval of the original compacts. Wisconsin Stat. § 992.20(1) validates "[a]ll contracts for the . .. joint exercise of any power or duty required or authorized by law entered into by a municipality, as defined in s. 66.0301(1)(a), and a federally recognized Indian tribe or band in this state before May 6, 1994." Wis. Stat. § 992.20(1). The term "municipality" expressly includes the state of Wisconsin, and we think it axiomatic that a compact is a form of contract. Wis. Stat. § 66.0301(l)(a).³⁹ Furthermore, IGRA expressly contemplates that tribal-state gaming compacts "may include provisions relating to . .. the allocation of criminal and civil jurisdiction between the State and the Indian tribe," and the compact thus involves a joint exercise of power authorized by law. 25 U.S.C. § 2710(d)(3)(C)(ii).

¶ 101. The legislature also demonstrated an intention to recognize the original compacts by virtue of Wis. Stat. § 565.01(6m), in which the legislature excepted tribal compacts from the definition of "lottery" as narrowed in the statutes prior to the passage of the 1993 constitutional amendment. Wis. Stat. § 565.01(6m)(c).⁴⁰ In 1992, the legislature was, in theory, able to authorize the Wisconsin Lottery to operate any game that contained the elements of prize, chance, and consideration. Had it done so, the state would have been obligated to negotiate these games under IGRA.

¶ 102. Thus, we do not believe the 1992 compact suffered from any infirmity under state law when it was entered into. Whether the 1992 compact is durable enough to withstand a change in state law that alters our understanding of what is "permitted" in Wisconsin is a separate question. The resolution of this question is likely to turn, at least in part, on the application of the impairment of contracts clauses in the United States and Wisconsin Constitutions as well as IGRA. Because these issues are not before us, and because they may turn in large measure on unresolved questions of federal law, our decision stops short of resolving these important questions.⁴¹

5. Sovereign Immunity

¶ 103. The petitioners assert that, in addition to amending the duration and scope of gaming provisions of the FCP Gaming Compact, the Governor intruded into the legislative domain by agreeing to waive Wisconsin's sovereign immunity. See Wis. Const, art. IY § 27 ("The legislature shall direct by law in what manner and in what courts suits may be brought against the state."). The Governor concedes that only the legislature may waive the state's sovereign immunity but argues that the state's sovereign immunity remains intact under the 2003 Amendments.⁴²

¶ 104. The operative provision of the Compact in this regard is Section XXIII.C, entitled "Sovereign Immunity; Compact Enforcement." In 1992, this provision read: "Except as provided [in a section where the Tribe waived its sovereign immunity], neither the State nor the Tribe waive their sovereign immunity, under either state or federal law, by entering into this Compact and no provision of this Compact is intended to constitute a waiver of State or Tribal sovereign immunity." In 2003 the Governor and the Tribe agreed to amend this provision to read: "The Tribe and the State expressly waive any and all sovereign immunity with respect to any claims brought by the State or the Tribe to enforce any provision of this Compact." This initial version of the 2003 Amendments with respect to sovereign immunity constituted a 180° change in course.

¶ 105. After the petitioners filed their petition for an original action, which challenged the Governor's authority to commit the state to the above waiver, the compact was amended to read "The Tribe and the State, to the extent the State or the Tribe may do so pursuant to law, expressly waive any and all sovereign immunity with respect to any claim brought by the State or the Tribe to enforce any provision of this Compact." The Governor contends that the additional subordinate clause sufficiently mitigates the thrust of the sentence's original subject and predicate to negate the waiver that resulted before the language was added.

¶ 106. We disagree. If the parties intended to negate entirely the initial waiver, they failed.

¶ 107. The qualifying language does not read "to the extent the Governor may waive sovereign immunity pursuant to law." If it did, we would agree that the parties had effectuated a significant linguistic restriction to the body of the sentence. This is not how the language reads. The qualifying language — "to the extent the State or Tribe may do so pursuant to law"— does little, if anything, to alter the meaning of the original sentence. Because the state may waive sovereign immunity pursuant to law, the added language does not change the meaning of the sentence. The latest version of Section XXIII.C still purports to waive the state's sovereign immunity, and its qualifying language is nugatory.

¶ 108. Only the legislature may exercise the authority to waive sovereign immunity on behalf of the state. State v. P.G. Miron Const. Co., Inc., 181 Wis. 2d 1045, 1052, 512 N.W.2d 499 (1994); Lister v. Board of Regents, 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976); State ex. rel. Teaching Assistants Association v. The University of Wisconsin-Madison, 96 Wis. 2d 492, 509, 292 N.W.2d 657 (Ct. App. 1980) (citing Fiola v. Voight, 93 Wis. 2d 337, 342, 286 N.W.2d 824 (1980)). Such legislative consent to suit must be express. Miron, 181 Wis. 2d at 1052-53; Fiala, 93 Wis. 2d at 342-43.

¶ 109. There is a fundamental legislative character to an action waiving sovereign immunity under our constitution. Consequently, our case law has made clear that the legislature may not inadvertently dispossess itself of this power. Teaching Assistants Association, 96 Wis. 2d at 514. When the legislature wishes to authorize a designated agent to waive the state's sovereign immunity, it must do so clearly and expressly. See Lister, 72 Wis. 2d at 282. "[T]he legislature is the proper body to authorize suits against the state. An agency or officer of the state may not waive the state's immunity from suit unless specifically authorized to do so." Id. at 294 (emphasis added); see also Teaching Assistants Association, 96 Wis. 2d at 515.

¶ 110. In the absence of a clear grant of authority from the legislature, the Governor exercised a core power of the legislature, and as such his action cannot stand. The Governor lacked any inherent authority to waive the state's sovereign immunity. Thus, under state law, Section XXIII.C is void.⁴³

¶ 111. Section XXIII.D provides that "[t]hese enforcement mechanism are an essential part of this Compact, and if they are found unenforceable against the Tribe or the State, or should the courts otherwise determine they lack jurisdiction to enforce the Compact, the parties will immediately resume negotiations to create a new enforcement mechanism." This statement is telling. Because we have found that one component of the Compact's sovereign immunity/enforcement mechanism provision is unenforceable against the state, the parties have agreed that they will return to the bargaining table to craft a new enforcement mechanism.⁴⁴

6. Future Appropriations

¶ 112. The petitioners assert that certain terms of the 2003 Amendments intrude into the domain of the legislature in that they appropriate state funds in violation of separation-of-powers principles. Because we have declared that the Governor acted outside his authority in agreeing to certain provisions in the 2003 Amendments to the FCP compacts, we anticipate that the parties will, as a result of this decision, renegotiate the terms of any amendments to the FCP Gaming Compact, which will roll over automatically. Given the centrality of the duration, additional games, and sovereign immunity provisions in the scheme of the 2003 amendments, it is likely that any subsequent amendments will have different terms,⁴⁵ including the remaining disputed provision. We therefore do not address this issue at this time.⁴⁶

CONCLUSION

¶ 113. 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 perpetual 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 IVA.5, IVA.7, and IVA.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.

By the Court. — Rights declared; declaratory relief granted, injunctive relief denied.

1 "The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction." Wis. Const, art. VII, § 3(2). Wisconsin Stat. § (Rule) 809.70 sets out the contents of a petition for an original action.

2 The Joint Committee on Legislative Organization is a statutorily created legislative committee consisting of the Speaker of the Assembly, the President of the Senate, and the majority and minority leaders and assistant majority and minority leaders of the Senate and Assembly. Wis. Stat. § 13.80.

3 At the First Session of the Legislative Assembly of the Territory of Wisconsin, the territorial legislature approved an act to prevent and punish gambling. Ch. 65, Laws of the Wisconsin Territory, First Session (approved Jan. 18, 1838). The act provided criminal penalties for setting up, keeping, and permitting any gaming table or gambling device or betting money at any gaming table, but it made no reference to lotteries. The 1839 Statutes of Wisconsin contain "An Act to provide for the punishment of offences against public policy." Statutes of the Territory of Wisconsin 363-65 (1839). The first 7 sections of this act deal with lotteries, while sections 8, 9, and 10 deal with other forms of gaming. This legislation was carried over after statehood. Chapter 138, "Of Offences Against Public Policy," Revised Statutes of the State of Wisconsin 705-07 (1849). In these early statutes, table games such as faro, "E O," and roulette were treated differently from lotteries. Id.

4 John Scarne, Scarne's New Complete Guide to Gambling 150, 152 (1974); see also Clark v. Washington, 25 U.S. 40 (1827).

5 "A lottery is a species of gaming, which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize." Monte M. Lemann, Lotteries, 25 Cyclopedia of Law and Procedure 1633 (William Mack & Howard E Nash eds.) (1912). This definition is quoted in early opinions of attorneys general. See, e.g., 5 Op. Att'y Gen. 380, 381 (1916).

6 The Menominee Tribe of Indians is excepted from this grant of jurisdiction because of retrocession of jurisdiction by the State of Wisconsin.

7 As the Court made clear in California v. Cabazon Band of Mission Indians:

"Indian country," as defined at 18 U.S.C. § 1151, includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." This definition applies to questions of both criminal and civil jurisdiction. DeCoteau v. District County Court, 420 U.S. 425, 427 n.2 (1975).

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 n.5 (1987).

8 IGRA became effective in October 1988.

9 Class II gaming must be "located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law)." 25 U.S.C. 2710(b)(1)(A).

10 The Drafter's Note read in full:

If the legislature enacts legislation approving an Indian gaming compact, the compact should not authorize the Indian tribe to conduct any gambling that is not authorized to be conducted by any person under ch. 945, stats. In other words, under current law, such a compact could only authorize an Indian tribe to conduct bingo, raffles, pari-mutuel wagering and lotteries and to operate crane games and certain other amusement devices. If the compact authorized other forms of gambling, then the legislation approving the compact would have to also include appropriate amendments to ch. 945.

However, notwithstanding the recent Attorney General's opinion on the legality and constitutionality of casino-type gambling in Wisconsin (OAG 3-90), in my opinion, casino-type gambling is currently prohibited by Article iy Section 24, of the Wisconsin Constitution and therefore cannot be authorized in ch. 945 without first amending the constitution.

Drafter's Note, Barry J. Stern, Legislative Attorney (March 8, 1990) (on file with drafting record of 1989 Wis. Act 196, Wisconsin Legislative Reference Bureau).

11 In 1992 the Legislative Reference Bureau prepared a lengthy analysis of Article W Section 24 in an opinion memorandum. See Memorandum from Barry J. Stern, Legislative Attorney, to Senator Michael Ellis (Feb. 13, 1992) (on file with the Legislative Reference Bureau) (memorandum regarding "Constitutionality of 1991 Assembly Bill 469"). The memorandum criticized aspects of both the Hanaway and Doyle opinions. The memorandum argued that the meaning of the word "lottery" in Section 24(6) is different from the meaning in Section 24(1). The memorandum stated:

The Doyle opinion appears to have given substantial weight... to the presumption that "lottery" means the same thing in s. 24 (6) as it does on s. 24 (1). It analyzed ways that the "ticket" language could make sense if "lottery" in s. 24 (6) refers to any form of gambling, including casino-type gambling, but did not consider any arguments to the contrary. It did not examine the legislative history of or contemporary news accounts relating to the approval of s. 24 (6), the referendum question submitted to the voters in April 1987 or the legislative history relating to the enactment of ch. 565. Instead, it identified certain language in ch. 565 that, in isolation from the rest of ch. 565, arguably supports a construction of''lottery¹¹ in s. 24 (6) to mean any form of gambling.

I am fairly certain that a Wisconsin state court would not accept the reasoning of the Doyle opinion in construing "lottery" in s. 24 (6). The literal meaning approach taken in the Doyle opinion is an approach that, to my knowledge, has never been taken by a Wisconsin state court in construing a . .. constitutional provision. As previously discussed in this memorandum, the literal meaning approach ... is rarely followed by a court in construing a constitutional provision.

In examining the legislative history relating to the approval of s. 24 (6) and the enactment of ch. 565, the court would be expected to examine the LRB drafting files and other documents prepared by legislative service agencies relating to those provisions. I have examined those drafting files and there is no mention in either file of anything related to casino-type gambling or of any intent for the legislature to authorize the state to operate any form of gambling other than the specific form of gambling that was being conducted by various other states and that involves the sale of lottery tickets and the selection of winning tickets through drawings or another method of chance.

Id. at 10-11, 12-13; see also Leann v. Wisconsin, 1993 Wise. LEXIS 16, No. 92-1861-OA (January 20, 1993) (citing same memorandum).

12 The State appealed Judge Crabb's decision, but the Seventh Circuit Court of Appeals refused to review the merits of the action because the state failed to file a timely notice of appeal. Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 957 F.2d 515 (7th Cir. 1992). The State filed its appeal before the district judge disposed of the tribe's motion to vacate the judgment, and as a result the State's appeal was dismissed. Id. at 516.

Much as we regret visiting the effects of counsel's error on the State of Wisconsin in a case bearing on its governmental powers, the current version of Rule 4(a)(4) leaves no alternative. A timely notice of appeal is essential to this court’s jurisdiction. The notice defendants filed is ineffectual. The appeal is dismissed for want of jurisdiction.

Id. at 517.

Four months after the Seventh Circuit dismissed the State's appeal, eight members of the Wisconsin legislature filed a petition to commence an original action in this court. Leann v. Wisconsin, 1993 Wisc. LEXIS 16, No. 92-1861-OA (January 20, 1993). This court denied the petition on the grounds that it presented no justiciable controversy. Id. at *2. Three members of the court, Justices Bablitch, Day, and Wilcox, would have heard the matter in order to clear up the confusion surrounding the meaning of the word lottery. Id. at *8-9 (Bablitch, J., dissenting).

13 Under the terms of its 1992 compact, the FCP Tribe could operate blackjack games at two facilities but was not authorized to locate these games "on the land known as the 'Menomonee Valley land.'" XVI.B.l.

14 Sections 2 through 5, not addressed in the text, read as follows:

(2) Except as otherwise provided by law, the following activities do not constitute consideration as an element of gambling:

(a) To listen to or watch a television or radio program.

(b) To fill out a coupon or entry blank, whether or not proof of purchase is required.

(c) To visit a mercantile establishment or other place without being required to make a purchase or pay an admittance fee.

(3) The legislature may authorize the following bingo games licensed by the state, but all profits shall accrue to the licensed organization and no salaries, fees or profits may be paid to any other organization or person: bingo games operated by religious, charitable, service, fraternal or veterans' organizations or those to which contributions are deductible for federal or state income tax purposes. All moneys received by the state that are attributable to bingo games shall be used for property tax relief for residents of this state as provided by law. The distribution of moneys that are attributable to bingo games may not vary based on the income or age of the person provided the property tax relief. The distribution of moneys that are attributable to bingo games shall not be subject to the uniformity requirement of section 1 of article VIII. In this subsection, the distribution of all moneys attributable to bingo games shall include any earnings on the moneys received by the state that are attributable to bingo games, but shall not include any moneys used for the regulation of, and enforcement of law relating to, bingo games.

(4) The legislature may authorize the following raffle games licensed by the state, but all profits shall accrue to the licensed local organization and no salaries, fees or profits may be paid to any other organization or person: raffle games operated by local religious, charitable, service, fraternal or veterans' organizations or those to which contributions are deductible for federal or state income tax purposes. The legislature shall limit the number of raffles conducted by any such organization.

(5) This section shall not prohibit pari-mutuel on-track betting as provided by law. The state may not own or operate any facility or enterprise for pari- mutuel betting, or lease any state-owned land to any other owner or operator for such purposes. All moneys received by the state that are attributable to pari-mutuel on-track betting shall be used for property tax relief for residents of this state as provided by law. The distribution of moneys that are attributable to pari-mutuel on-track betting may not vary based on the income or age of the person provided the property tax relief. The distribution of moneys that are attributable to parimutuel on-track betting shall not be subject to the uniformity requirement of section 1 of article VIII. In this subsection, the distribution of all moneys attributable to pari-mutuel on-track betting shall include any earnings on the moneys received by the state that are attributable to pari-mutuel on-track betting, but shall not include any moneys used for the regulation of, and enforcement of law relating to, pari- mutuel on-track betting.

15 The dissent notes that the 1998 amendments grant to the Tribe blackjack operations at its Menomonee Valley land location and suggests that this represents authorization of a new type of game. The Tribe was already authorized to operate blackjack games at two facilities. Consequently, permitting 25 additional blackjack tables at its site in Milwaukee did not constitute approval of a new type of game.

16 The April 4, 2003, amendment's primary effect was to delete provisions tying the scope of the permissible "casino table games" the FCP Tribe could operate to whether other facilities within 75 miles of Wisconsin's border offered such games. If there were such "competitive" facilities, then the FCP Tribe could also conduct the casino table games those facilities offered. In this provision's place, the April 4, 2003, amendment simply permitted the tribe to conduct casino table games without qualification.

17 The Technical Amendments altered a number of provisions in the Compact, including sections that the petitioners objected to in their petition for original action on sovereign immunity and future appropriations grounds. The petitioners' claims with respect to these provisions have evolved to keep pace with the subsequent alterations to the compact.

18 Unlike the other games in this list, the Wisconsin Constitution and Wisconsin Statutes expressly allow pari-mutuel on-track betting, including wagering on simulcast events. See Wis. Const. art IV, § 24(5); Wis. Stat. § 562.057.

19 The technical amendments of May 30, 2003, altered the language of this term in a number ways. First, the parties agreed to add the qualifying language "to the extent the State or the Tribe may do so pursuant to law" to the first sentence. Second, the following sentence was removed: "This waiver also includes a suit to enforce the obligations in Section XXV and a suit by the Tribe to restrain actions by State officials that are in excess of their authority under the Compact." Finally, the parties agreed to add the last three sentences, which state:

In addition, the State agrees that State officials and employees may not engage in unauthorized activity. State officials and employees are not authorized under law to engage in activity that violates the terms of the Compact; that violates an arbitration award entered under Section XXII; or, with respect to subject matters governed by the Compact, that is not authorized by the Compact. The Tribe may maintain a suit against State officials, agents, or employees to prevent unauthorized activity without regard to whether or not the State has waived its sovereign immunity.

20 This conclusion comports with the court of appeals scholarly analysis in Dairyland Greyhound Park, Inc. v. McCollum, 2002 WI App 259, 258 Wis. 2d 210, 655 N.W.2d 474, where the court concluded that litigation regarding the validity of Indian gaming compacts may proceed in the absence of Tribes with compacts at issue. This court denied a petition to review that decision. Dairyland Greyhound Park, Inc. v. McCollum, 2003 WI 1, 258 Wis. 2d 110, 655 N.W.2d 129 (denying petition to review); see also Saratoga County Chamber of Commerce, Inc. v. Pataki, 798 N.E.2d 1047, 1058-59 (N.Y. 2003) ("While sovereign immunity prevents the Tribe from being forced to participate in New York court proceedings, it does not require everyone else to forego the resolution of all disputes that could affect the Tribe.").

21 Recent commentators who have examined separation of powers questions under state constitutions on a national scale have categorized Wisconsin as among the states on the permissive end of the spectrum when it comes to legislatively delegated power. See, e.g., Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 Vand. L. Rev. 1167 (1999) (placing Wisconsin among the "handful" of states to follow the "procedural safeguard" approach of Professor Kenneth Culp Davis); Gary J. Greco, Survey, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8 Admin L.J. Am. U. 567, 598-99 (1994).

22 The dissent asserts that we are writing limits into the statute. In our view, we are simply recognizing limits to executive power that exist by virtue of the Wisconsin Constitution.

23 This decision was vacated by the Ninth Circuit for failure to join certain indispensable Indian tribes.

24 American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1072 (reasoning that Governor engages in a "kind of legislative act by establishing state gaming policy"); Stephan, 836 P.2d at 1185 ("[M]any of the provisions in the compact would operate as enactment of new laws and the amendment of existing laws."); State ex rel. Clark v. Johnson, 904 P.2d 11, 23 (N.M. 1995) ("We also find the Governor's action to be disruptive of legislative authority because the compact strikes a detailed and specific balance between the respective roles of the State and the Tribe in [a number of respects]."); Saratoga County, 798 N.E.2d at 1060 ("Compacts addressing [the issues permitted to be addressed under IGRA] necessarily make fundamental policy choices that epitomize 'legislative power.'"); Narragansett Indian Tribe of Rhode Island v. Rhode Island, 667 A.2d 280, 281 (concluding that the legislative branch exercises exclusive authority over lotteries in the state).

25 The FCP Tribe retains the ability to withdraw from the compact unilaterally. Under the amended terms the Governor agreed to in 2003, the FCP Tribe could, at any time, adopt an ordinance or resolution revoking the authority of the Tribe to conduct Class III gaming upon its lands and thereby terminate the compact.

26 Section XXXIII of the Compact was amended to read:

In the event that Section XXV (Effective Date and Duration) of the 2003 Amendments is disapproved, in whole or in part, by the Secretary of the Interior or are found unenforceable or invalid by a court of competent jurisdiction, the State shall immediately refund any payments made by the Tribe to the State under Section XXXI.G.l.b., the Tribe shall not be required to make any further payments under Section XXXI.G.2., and the parties shall negotiate in good faith to reach agreement on substitute provisions for Sections XXV and XXXI.

Section XXXI.G.l.b. encompasses payments of $34,125 million on June 30, 2004 and $43,625 million June 30, 2005. Thus, if the state were to successfully challenge the duration provision five years from now, it would immediately owe the Tribe $77.75 million dollars under the term of the compact.

27 A poison pill, used by corporations to defend against hostile takeovers, is a "conditional stock right that is triggered by a hostile takeover and makes the takeover prohibitively expensive." Thomas Lee Hazen, The Law of Securities Regulation § 11.20, at 575 (2d ed. 1990) cited in Black's Law Dictionary 1177 (7th ed. 1999).

28 The question whether the legislature itself could approve a gaming compact of indefinite duration is not presented by this case.

29 However, the nature of the delegated power still plays a role in Wisconsin's nondelegation doctrine. Simply stated, there may be certain powers that are so fundamentally "legislative" that the legislature may never transfer those powers to another branch of government or, if they may, must be delegated with particular attention and specificity. See, e.g., State ex rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 121, 401 N.W.2d 782 (1987) (citing State v. Lehtola, 55 Wis. 2d 494, 498, 198 N.W.2d 354 (1972)), reversed on other grounds, State v. Unnamed Defendant, 150 Wis.2d 352, 441 N.W.2d 696 (1989); Lister v. Board of Regents, 72 Wis. 2d 282, 291, 240 N.W.2d 610 (1976); see also the section of this opinion addressing sovereign immunity, infra.

30 The legislature twice attempted to amend § 14.035 to include a requirement that the legislature must approve any change to the gaming compacts, once on February 24, 2003, and again on March 14, 2003. The Governor vetoed both bills, and an attempt by the legislature to override one veto failed. If the legislature had succeeded in overriding the Governor's veto and amending § 14.035 to include a legislative-approval requirement; this change would have been ineffectual with respect to the 2003 amendments to the FCP Compact. The Governor and the Tribe reached agreement on February 19, 2003, five days before the legislature gave approval to the first attempt to amend § 14.035. In the absence of judicial review, the compacts would have continued until both the State and the Tribe mutually agreed to termination of the agreement, or until the Tribe exercised its unique ability to unilaterally withdraw. Thus, even having amended § 14.035, the legislature would be without the ability to require withdrawal from the compact without the assent of the Tribe. This paradigm lies at the heart of petitioners' claim with respect to the duration provision.

31 For a thorough discussion of the similarities and differences between interstate compacts and state-tribal compacts under IGRA, see Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 Ariz. St. L. J. 25, 55-63 (1997) (advocating that state-tribal compacts be examined under similar rationales as interstate compacts).

32 See generally State ex rel. Dyer v. Sims, 341 U.S. 22 (1951).

33 At oral argument, the Governor's counsel argued that by March of 1990, when the legislature enacted § 14.035, Minnesota had entered into at least one compact with an indefinite duration provision, thus alerting our legislature to the possibility of an indefinite-duration compact. The Governor has not, however, provided any documentary evidence of such a compact, or authority that indicates our legislature considered the Minnesota experience.

In fact, the earliest Minnesota gaming compacts we have located, from early 1990, were passed under the authority of Minn. Stat. § 3.9221. See http://www.ncai.org/main/pages/issues /governance/agreements/gaming_agreements.asp (National Congress of American Indians website listing tribal-state gaming compacts). This statute provides in part:

A compact agreed to on behalf of the state under this section must contain:

(1) a provision recognizing the right of each party to the agreement, including the legislature by joint resolution, to request that the agreement be renegotiated or replaced by a new compact, and providing the terms under which either party, including the legislature, can request a renegotiation or the negotiation of a new compact.

Minn. Stat. Ann. § 3.9221 (emphasis added).

34 These games are also denied to the Wisconsin Lottery by statute. In 1992, prior to the 1993 amendment to Article Y Section 24(6), the legislature amended the definition of "lottery" in chapter 565 of the Wisconsin statutes, portending the identical change that was to come in the constitutional amendment. At the time, after Judge Crabb's decision in Lac du Flambeau but before the 1993 constitutional amendment, two state representatives asked Attorney General Doyle his opinion as to the effect of such a change in státutory law on Indian gaming in general and the compacting process in particular. Letter from James E. Doyle, Attorney General, to Walter Kunicki, Speaker of the Wisconsin Assembly, and John Medinger, Chairperson of the Assembly Committee on State Affairs 1 (April 29,1992) (on file with the Wisconsin Historical Society Archives, John D. Medinger Papers, Box 6, Folder 1).

Representatives Kunicki and Medinger posed a number of questions. For instance, they asked whether "the legislation prevent[s] the Governor from entering into compacts that authorize blackjack and electronic games with the three tribes that currently do not have compacts, if such compacts are not entered into [after the change in definition becomes effective]." Attorney General Doyle responded in part:

The legislation will change, on its effective date, those games which are permitted in Wisconsin. After the effective date of the legislation the enumerated games, roulette, craps, banking card games, etc., will no longer be permitted in Wisconsin except as provided in the grandfather provision [pursuant to proposed § 565.01(6m)(c) regarding state-tribal gaming compacts]. At that point it will be unlawful for tribes to whom the statute applies to conduct those games and since their conduct is unlawful, the Governor is not required to negotiate over them.

Id. at 2.

The legislators also asked about existing compacts that "grant to the tribes the right to request that compacts be revised to permit additional games." They ask the prescient question: "Does the legislation prevent the Governor, through the negotiation process, from authorizing Indian tribes to conduct additional games?" Attorney General Doyle responded:

The current legislation would not prevent the Governor from negotiating with the tribes over the adding of additional games to the compact so long as those games are permitted after the effective date of the legislation, or the additional games were added prior to the effective date of the legislation. If the games are not permitted after the effective date, the Governor would not he able to add them.

Id. at 4 (emphasis added).

35 In July of 1997, Attorney General Doyle spoke at a Federal Indian Law Seminar in San Diego, California. Attorney General James E. Doyle, Address at the Federal Indian Law Seminar, handout materials (July 30, 1997) (on file with the Wisconsin Historical Society Archives, Executive Staff of the Attorney General Working Files, 1970-1998, Series 2832). The focus of his speech was to update significant developments in Indian gaming law generally, and IGRA specifically. Id. at 1. The materials that were provided to attendees included a section entitled "Issues on the Horizon." Attorney General Doyle discussed one such looming issue as follows:

Changes in State Law Subsequent to Implementation of Compacts. See e.g., Wisconsin Constitutional Amendment, Article IV, section 24(6) (April, 1993).

This is an especially important issue when states and tribes are faced with renegotiation of expiring compacts. Does the new law apply to limit scope of gaming, or are the parties forced to negotiate under the law as it existed in 1988, when IGRA was passed into law?

Id. at 5. This text suggests that the effect courts would give to subsequent changes in state law remained an open question.

36 In Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. United States, 2004 WL 909159, 367 F.3d 650 (7th Cir. April 29, 2004), the Seventh Circuit Court of Appeals upheld the constitutionality of the gubernatorial concurrence provision of IGRA. 25 U.S.C. § 2719(b)(1)(A). Near the end of its opinion, the court reprised the themes in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F.Supp. 480, 487 (W.D. Wis. 1991), appeal dismissed for want of jurisdiction, 957 F.2d 515 (7th Cir. 1992), concerning Cabazon, § 2710(d)(1)(B), and Wisconsin public policy on gaming. Id. at 12.

The court's brief discussion was not central to its decision and did not analyze the many events that have transpired since the 1991 Lac du Flambeau case, including the multiple federal decisions that are contrary to that case. As we see it, Cabazon interpreted the effect of Pub. L. 280 on Indian gaming. IGRA superseded both Public L. 280 and Cabazon when it prescribed in detail the states' role in Indian gaming. Putting to one side the constitutional protections against the impairment of contracts, we do not understand IGRA to grant Indian tribes in Wisconsin the right to engage in gambling activities that are prohibited by the Wisconsin constitution and Wisconsin criminal statutes to all persons, organizations, and entities in the state.

The Seventh Circuit opinion appears to suggest that Wisconsin would have to amend its constitution to abolish the state-operated lottery and pari-mutuel betting and criminalize all Class III gaming in the state in order to regain some authority to prohibit any Class III gaming on Indian lands. The dissent in the present case goes further, taking the position that even this step would be unavailing because the 1992 Compact's amendment provisions are uninhibited and unaffected by any subsequent change in state law, including constitutional amendments. The vindication of either of these views would emasculate state sovereignty in our federal system.

³⁷ Other developments in this area of law contribute to the erosion of the legal and factual framework that existed in 1992 when Judge Crabb issued the Lac du Flambeau decision. For instance, in 1996, the United States Supreme Court handed down a landmark sovereign immunity decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996). In that case, the Court held among other things that the Indian Commerce Clause, the authority under which Congress enacted IGRA, does not empower Congress to abrogate a state's Eleventh Amendment immunity. As a result, unless a state consents to suit, an Indian tribe may not enforce IGRA against states in federal court. This decision continues to color our understanding of the dynamics of federalism at play under IGRA.

38 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.

39 Section 66.0301(l)(a) provides that

"municipality" means the state or any department or agency thereof, or any city, village, town, county, school district, public library system, public inland lake protection and rehabihtation district, sanitary district, farm drainage district, metropohtan sewerage district, sewer utility district, sobd waste management system created under s. 59.70(2), local exposition district created under subch. II of ch. 229, local professional baseball park district created under subch. Ill of ch. 229, local professional football stadium district created under subch. IV of ch. 229, a local cultural arts district created under subch. V of ch. 229, family care district under s. 46.2895, water utility district, mosquito control district, municipal electric company, county or city transit commission, commission created by contract under this section, taxation district, regional planning commission, or city-county health department.

Wis. Stat. § 66.0301(l)(a) (emphasis added).

40 Wisconsin Stat. § 565.01(6m)(c) provides: "This subsection shall not affect the provisions of any Indian gaming compact entered into before January 1, 1993, under section 14.035."

41 The Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (Fla. 1996), changes the dynamics of a gaming dispute between a tribe and a state. Such a dispute is now more likely to be resolved in a state court than before the Seminole Tribe decision. We believe this case is dominated by questions of state law, which the Wisconsin Supreme Court has the right and duty to resolve. The dissent disagrees. The dissent can take solace in the fact that if the Governor believes this case improperly raises or incorrectly decides questions of federal law, the Governor may seek review in the United States Supreme Court.

42 The Governor asserts that irrespective of whether he waived the state's sovereign immunity in the 2003 Amendments, that claim would not ripen until the Tribe attempted to employ the challenged provision. However, given the dissent's belief that the current action represents only a layover on the journey to federal court, it is important that this court take the opportunity to decide this important question of state law. If this court were to wait until this dispute gets into federal court, as the dissent predicts it will, then this court would be denied the opportunity to examine and interpret Wisconsin's constitution.

43 The petitioners have also raised a claim with respect to the provision in the Compact providing that

If the State fails to comply with an award of the tribunal, other than an award to pay money to the Tribe, and asserts the State's sovereign immunity, then the tribunal, upon the application of the Tribe, may issue an order requiring the State to pay the Tribe a sum of money as liquidated damages.

We do not address this provision directly today. Suffice it to say that, like Section XXIII.C addressed in the text, it is invalid if it waives the state's sovereign immunity.

44 The Governor also agreed to other provisions relating to sovereign immunity. Section XXIII.A provides:

This Compact does not alter any waiver of either State or Tribal immunity which may have been effectuated by Congress in passing the Act. This Compact in no way limits the application of 25 U.S.C. sec. 2710(d)(7)(A) [1991] which the parties believe provides an enforcement mechanism for violation of this Compact.

This provision is not problematic insofar as it does not independently waive sovereign immunity.

We note that, in view of the United States Supreme Court's decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996), Section XXIII. A states a view of the law contrary to that case. In Seminole Tribe, the Court concluded that Congress could not abrogate a state's sovereign immunity. A Tribe could not force a state into federal court under 25 U.S.C. § 2710(d)(7). The parties are free to agree that they believe that ruling does not exist, but Seminole Tribe is still good law.

45 We note the evolving nature of these provisions in response to litigation up to today. Shortly after the petitioners filed suit, for instance, the sovereign immunity provision was changed. Before the suit, the sovereign immunity section read "The Tribe and the State expressly waive any and all sovereign immunity with respect to any claims brought by the State or the Tribe to enforce any provision of this Compact." After the suit, the compact was amended to read "The Tribe and the State, to the extent the State or the Tribe may do so pursuant to law, expressly waive any and all sovereign immunity with respect to any claim brought by the State or the Tribe to enforce any provision of this Compact."

46 This decision does not invalidate any games authorized by the 1992 compact or the 1998 amendments thereto. It does not formally resolve one issue raised by the petitioners in this case. In its Appendix, the dissent addresses this issue and many others. The dissent's discussion does not settle issues not addressed by a majority of the court.

37 2003 Senate Bill 44. Both petitioners voted for this, which relies on payments from all Wisconsin Tribes totaling $206,938,200 over the biennium.