Dairyland Greyhound Park, Inc. v. Doyle

2006 WI 107, 719 N.W.2d 408, 295 Wis. 2d 1, 2006 Wisc. LEXIS 402

• Court: Wisconsin Supreme Court
• Decided: July 14, 2006
• Docket: 2003AP421
• Status: Published

Opinions

LOUIS B. BUTLER, JR., J.

¶ 1. Dairyland Greyhound Park, Inc. ("Dairyland") appeals from a decision by the Honorable Richard J. Callaway, Dane County Circuit Court, granting summary judgment in favor of the defendants, Governor James E. Doyle and then-Secretary of Administration Marc J. Marotta, both in their official capacities¹ (collectively referred to as "the Governor"), concluding that the 1993 amendment to Article TV, Section 24 of the Wisconsin Constitution ("1993 Amendment") did not affect the 1991-92 Tribal gaming compacts ("Original Compacts") or any extensions to the Original Compacts. The court of appeals certified the appeal to this court to determine the Governor's authority to extend the 11 Original Compacts.²

¶ 2. We conclude that the 1993 Amendment to Article TV, Section 24 of the Wisconsin Constitution does not invalidate the Original Compacts.³ Because the Original Compacts contemplated extending the Compacts and amending the scope of Indian gaming within the Compacts, we further conclude that the parties' right of renewal is constitutionally protected by the Contract Clauses of the Wisconsin and United States Constitutions, and that amendments to the Original Compacts that expand the scope of gaming are likewise constitutionally protected by the Contract Clauses of the Wisconsin and United States Constitutions. We withdraw any language to the contrary in Panzer v. Doyle, 2004 WI 52, 271 N.W.2d 295, 680 N.W.2d 666, that would limit the State's ability to negotiate for Class III games under the Original Compacts.⁴ Accordingly, gaming can be expanded to the extent that the State and Tribes negotiate for additional Class III games.

¶ 3, The essence of what is at issue here is whether Wisconsin should break treaties with Tribes by walking away from its contractual obligations.⁵ Rules of contract interpretation and the Contract Clauses of the United States and Wisconsin Constitutions compel us to conclude that the State must honor its contractual obligations in their entirety. We therefore affirm the order of the circuit court.

¶ 4. This case stems from allegations by Dairyland that the 1993 Amendment deprives the Governor of the authority to permit Wisconsin Tribes to continue conducting casino-type gaming in Wisconsin. Dairyland asserts that Article IX Section 24 of the Wisconsin Constitution renders all types of Class III gaming illegal, except for certain games that are specifically exempted under the Wisconsin Constitution.⁶ Therefore, according to Dairyland, Class III games that are not specifically exempted under the constitution are not lawful subjects of the State-Tribal Compacts. Dairyland asks this court to reverse the circuit court's decision, to enjoin the Governor from renewing the Original Compacts, and to instruct the Governor to exercise the State's right of nonrenewal according to the terms of the Original Compacts.⁷

¶ 5. The Governor asserts that the 1993 Amendment was not intended to impact the Original Compacts. Relying on the Contract Clauses of the Wisconsin⁸ and United States Constitutions,⁹ and federal preemption under the Supremacy Clause of the United States Constitution,¹⁰ the Governor asserts that the 1993 Amendment does not diminish the State's authority to renew its gaming Compacts with the Tribes.¹¹

¶ 6. In Panzer, 271 Wis. 2d 295, ¶ 102, this court concluded that the Original Compacts were lawfully entered into and that the question of the Compacts' durability after the 1993 Amendment was a question that may require an analysis under the impairment of Contract Clauses under the United States and Wisconsin Constitutions, as well as under the Indian Gaming Regulatory Act ("IGRA"). The Panzer majority, however, declined to resolve these questions. Id., ¶ 102. We now address the impairment of contracts issues raised by the Original Compacts and the 1993 change to the Wisconsin Constitution.¹²

I

¶ 7. The facts are undisputed for purposes of this appeal. Following the 1991 decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992),¹³ and pursuant to the Indian Gaming Regulatory Act, 25 USC § 2710(d)(3)(c) (1988),¹⁴ and Wis. Stat. ,¹⁵ Wisconsin's then-Governor Tommy Thompson negotiated gaming compacts with the 11 Tribes located in the State. Panzer, 271 Wis. 2d 295, ¶ 25. By June 1992, the State had entered into compacts with each of the 11 Tribes. Id. The Original Compacts initially lasted for seven-year terms, with automatic extensions for five-year terms, subject to the right of either party to issue a notice of nonrenewal prior to the expiration of the term.¹⁶ Id., ¶¶ 25-26, 32. These Original Compacts permitted the Tribes to engage in certain Class III¹⁷ casino gaming on Tribal land, including blackjack tables, electronic gaming machines, and pull-tab machines.

¶ 8. In April 1993, Wisconsin voters ratified an amendment to the Wisconsin Constitution to limit gaming in Wisconsin. Id., ¶ 28. The 1993 Amendment changed Article IY Section 24 to (1) prohibit the legislature from authorizing gambling in any form except for specific games provided for in the amendment;¹⁸ and (2) narrowly define the nature of the state-operated lottery. 1991 EJR 27. See also Panzer, 271 Wis. 2d 295, ¶¶ 29-31.

¶ 9. The initial 1991-92 compacts were subsequently renewed in 1998 and 1999, each for a term of five years. Id., ¶ 32. The compacts were again renewed in 2003. Id., ¶ 33. Since 1992, Class III gaming has continued to be conducted on Tribal land.

¶ 10. Dairyland alleges that it began to lose revenue due to the Class III games allowed on Tribal land. Dairyland first filed this action against then-Governor Scott McCallum on October 23, 2001, claiming that the Governor was not authorized to extend the gaming compacts with the Tribes in light of the 1993 Amendment. Dairyland sought an injunction preventing the Governor from entering into any future compacts and directing the Governor to serve a timely notice of nonrenewal to the Tribes for the existing compacts.

¶ 11. The Dane County Circuit Court, Honorable John C. Albert, originally granted the Governor's motion to dismiss, ruling that the Tribes were indispensable parties and had not been included in the litigation. Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App 259, ¶ 1, 258 Wis. 2d 210, 655 N.W.2d 474. The court of appeals concluded that the circuit court erred in finding the Tribes to be indispensable parties in whose absence the action should not proceed. Id. The court of appeals reversed the order dismissing the action and remanded the case to the circuit court for further proceedings on Dairyland's complaint. Id.

¶ 12. On remand, both Dairyland and the Governor moved for summary judgment. The circuit court granted the Governor's motion for summary judgment, relying heavily upon the civil-regulatory and criminal-prohibitory distinction from Lac du Flambeau Band, 770 F. Supp. at 487-88, and determined that because Section 24 does not prohibit Class III Indian gaming, the compacts are lawful. Dairyland Greyhound Park, Inc. v. Doyle, No. 2001CV2906, Order at 12 (Dane Co. Cir. Ct. Feb. 11, 2003).

¶ 13. Dairyland appealed, and the court of appeals asked this court to accept certification on June 2, 2003. On September 12, 2003, this court accepted certification.

¶ 14. On March 30, 2004, this court remanded the case to the court of appeals because the court was equally divided on whether to affirm the judgment of the circuit court. Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI 34, ¶¶ 2-4, 270 Wis. 2d 267, 677 N.W.2d 275. On November 4, 2004, in light of this court's decision in Panzer, the court of appeals again certified the appeal to this court, and on January 11, 2005, we again accepted certification. We now affirm.

II

¶ 15. This court reviews a grant of summary judgment de novo, benefiting from the circuit court's decision, but applying the same methodology as the circuit court. Linden v. Cascade Stone Co., Inc., 2005 WI 113, ¶ 5, 283 Wis. 2d 606, 699 N.W.2d 189.

¶ 16. The interpretation of a constitutional provision, the interpretation of a contract, and whether a contract has been impaired are questions of law that we also review de novo. Wagner v. Milwaukee County Election Comm'n, 2003 WI 103, ¶ 18, 263 Wis. 2d 709, 666 N.W.2d 816 (constitutional interpretation); Dieter v. Chrysler Corp., 2000 WI 45, ¶ 15, 234 Wis. 2d 670, 610 N.W.2d 832 ("We review the interpretation of a warranty or any other contract de novo.") (emphasis added); Everson v. Lorenz, 2005 WI 51, ¶ 10, 280 Wis. 2d 1, 695 N.W.2d 298 (contract interpretation); Pfister v. Milwaukee Economic Develop. Corp., 216 Wis. 2d 243, 261, 576 N.W.2d 554 (1998) (contract impairment).

Ill

¶ 17. In 1989, the Wisconsin Legislature granted the Governor the authority to enter into compacts with the Tribes located in Wisconsin, pursuant to IGRA.¹⁹ By 1992, Wisconsin's Governor entered into the Original Compacts on behalf of the State,²⁰ thereby creating a contractual relationship between the State and all 11 federally-recognized Tribes and bands located within the State borders. Panzer,; 271 Wis. 2d 295, ¶ 25. These compacts were validly executed prior to the change in Wisconsin law under the 1993 Amendment. The parties do not dispute that the Original Compacts were valid when they were entered into in 1991 and 1992. The parties dispute, however, whether the 1993 Amendment changes the terms agreed to in the Original Compacts. The Governor contends that the 1993 Amendment does not impact the terms of the Original Compacts. In contrast, Dairyland asserts that the 1993 Amendment precludes the State from renewing or amending the compacts.

¶ 18. Whether the 1993 Amendment retrospectively invalidates the Original Compacts or any provisions contained therein, raises questions of constitutional interpretation and contract impairment. We therefore begin with an analysis of the 1993 Amendment. We then evaluate whether the 1993 Amendment affects the renewal provision.²¹ Finally, we evaluate whether the 1993 Amendment impacts the contractual provisions that address the scope of gaming allowed on Tribal land.²²

A

¶ 19. The purpose of construing a constitutional amendment is to give effect to the intent of the framers and of the people who adopted it. State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328 (citations omitted). Constitutions should be construed so as to promote the objects for which they were framed and adopted. Id. "The constitution means what its framers and the people approving of it have intended it to mean, and that intent is to be determined in the light of the circumstances in which they were placed at the time[.]" State ex rel. Bare v. Schinz, 194 Wis. 397, 404, 216 N.W. 509 (1927) (citation omitted). We therefore examine three primary sources in determining the meaning of a constitutional provision: the plain meaning, the constitutional debates and practices of the time, and the earliest interpretations of the provision by the legislature, as manifested through the first legislative action following adoption. Schilling v. Wisconsin Crime Victims Rights Bd., 2005 WI 17, ¶ 16, 278 Wis. 2d 216, 692 N.W.2d 623 (citing Wisconsin Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶ 44, 270 Wis. 2d 318, 677 N.W.2d 612; Cole, 264 Wis. 2d 520, ¶ 10). See also Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996) (citations omitted).

¶ 20. The 1993 Amendment reads, in relevant part, "Except as provided in this section, the legislature may not authorize gambling in any form." Wis. Const, art. iy § 24(1). Clauses 3 through 6 list four exceptions to the broad prohibition: 1) bingo games operated by charitable and religious organizations; 2) raffle games operated by charitable and religious organizations; 3) pari-mutuel on-track betting; and 4) the state-operated lottery. Id. Furthermore, as amended, Clause 6 specifically defines the state-operated lottery to exclude casino-style games, explicitly prohibiting blackjack, poker, roulette, craps, keno, slot machines, and video gaming.²³

¶ 21. The Amendment clearly states: "the legislature may not authorize gambling in any form." Wis. Const, art iy § 24(1) (emphasis added). These words can be construed to mean, simply, that all Class III games in Wisconsin, excluding the specific games enumerated in the Amendment, were made unconstitutional by the 1993 Amendment. Because the Amendment did not explicitly exclude Tribal gaming, the Class III games on Tribal land are, arguably, unconstitutional.

¶ 22. On the other hand, constitutional amendments that deal with the substantive law of the State are presumed to be prospective in effect unless there is an express indication to the contrary. Kayden Industries, Inc. v. Murphy, 34 Wis. 2d 718, 731, 150 N.W.2d 447 (1967). Because the 1993 Amendment is silent with regard to the issue of the pre-existing Tribal gaming compacts, the Amendment is not retrospective in operation.

¶ 23. We conclude that the 1993 Amendment's failure to explicitly address the Original Compacts creates an ambiguity as to whether the compacts fall within the Amendment's reach.²⁴

¶ 24. As the purpose of construction of an amendment is to give effect to the intent of the framers and the people who adopted it, a paramount rule of constitutional construction is that the intent of the provision "is to be ascertained, not alone by considering the words of any part of the instrument, but by ascertaining the general purpose of the whole[.]" Id. at 730. "[W]hen the intent of the whole is ascertained, no part is to be construed so that the general purpose [is] thwarted, but the whole is to be made to conform to reason and good discretion." Id. (citation omitted). We therefore next examine the history surrounding the passage of the 1993 Amendment. In our historical analysis of the 1993 Amendment, we examine the legislative debates and the ratification campaign. See Schilling, 278 Wis. 2d 216, ¶ 16.

a

¶ 25. In order to amend the Wisconsin Constitution, two successive legislatures must pass a proposed constitutional amendment before putting the measure to the voters for ratification. Wis. Const, art. XII, § 1.

¶ 26. Prior to the legislature's first consideration of the 1993 Amendment, the Governor convened a special session of the legislature. During this special session, the legislature created Wis. Stat. §565.01(6m). 1991 Wis. Act 321. Like the 1993 Amendment, § 565.01(6m)²⁵ defines the "state lottery."²⁶ Nevertheless, § 565.01 explicitly preserved the Original Compacts. Under the statute, the Tribal gaming compacts entered into prior to January 1, 1993, are not governed by the remaining portions of the statute: "(c) This subsection shall not affect the provisions of any Indian gaming compact entered into before January 1, 1993, under s. 14.035." Wis. Stat. § 565.01(6m)(c).

¶ 27. In contrast to the statute, the 1993 Amendment defined "state lottery" without any explicit statement regarding the amendment's impact, or lack thereof, on the pre-existing Tribal gaming compacts. Upon review of the record, we found no notations explaining why any reference to the Tribal gaming compacts was excluded from the 1993 Amendment proposals.

¶ 28. However, the constitutional amendment did not need to contain a similar provision in order to accomplish the same result as Wis. Stat. § 565.01(6m)(c). This subsection of the statute was intended to exempt the Original Compacts. Panzer, 271 Wis. 2d 295, ¶ 86 n.34 (citing 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 (April 29,1992) (on file with the Wisconsin Historical Society Archives, John D. Medinger Papers, Box 6, Folder 1)). Because constitutional amendments are presumed to be prospective, Kayden, 34 Wis. 2d at 732, it would have been superfluous for the legislature to exempt the Original Compacts in order for the 1993 Amendment to achieve the same goal.²⁷

¶ 29. Because the 1993 Amendment and Wis. Stat. § 565.01 were passed contemporaneously, we must not interpret the two enactments "to indicate a contradictory legislative intent." See State ex rel. Teunas v. County of Kenosha, 142 Wis. 2d 498, 509, 418 N.W.2d 833 (1988) (citation omitted).²⁸ We therefore conclude that the legislature did not intend the 1993 Amendment to invalidate the Original Compacts. This is consistent with our decision in Panzer, where this court held that the fact that § 565.01(6m)(c) explicitly exempted Tribal compacts from the definition of "lottery" prior to the passage of the 1993 Amendment signaled legislative approval of the Original Compacts. Panzer, 271 Wis. 2d 295, ¶ 101.

¶ 30. On June 30, 1992, the legislature considered and passed 1992 Assembly Joint Resolution 1. This was the first consideration of the resolution that eventually amended Article IV( Section 24. Approximately seven months later, 1993 Senate Joint Resolution 2, the second consideration of the constitutional amendment, was introduced. On January 26,1993, SJR 2 passed the Senate, and the Assembly on February 17, 1993. The two joint resolutions (1992 SJR 1 and 1993 SJR 2) were combined into 1991 Enrolled Joint Resolution 27. The voters of Wisconsin ratified the enrolled resolution on April 6, 1993.

¶ 31. A review of the drafting files for the constitutional amendment indicates that the legislators intended to preserve the Original Compacts as they existed at the time. These files demonstrate that the joint resolutions were based on an earlier proposal to amend the constitution with regard to gaming and a statute that was passed during the same legislative session.

¶ 32. In 1991, then-Governor Thompson called a special session to address amending the Wisconsin Constitution with regard to gaming. Governor Thompson submitted a drafting request for the special session proposal, 1991AJR 1, requesting that the resolution be drafted to mirror an earlier legislative proposal²⁹ intended to "freeze" the state of gaming and to take into account differences between that proposal,³⁰ and Wis. Stat. § 565.01, which made most forms of gambling illegal, but explicitly excluded the Tribal casinos.³¹ Drafting Request by Governor Thompson, June, 1992. According to the Legislative Reference Bureau's analysis of the bill, the constitutional amendment was based on that earlier legislation and incorporated Wis. Stat. § 565.01. Dr. H. Rupert Theobald, LRB Drafter's Note, June 16, 1992. Because the LRB's analysis of a bill is printed with and displayed on the bill when it is introduced in the legislature, the LRB's analysis is indicative of legislative intent. Schilling, 278 Wis. 2d 216, ¶ 25 n.9. See also Cole, 264 Wis. 2d 520, ¶ 36 n.12.

¶ 33. The legislative records also reveal that Wisconsin's legislators were uniformly informed that the amendment would not affect the Original Compacts. For example, prior to the June 30 vote, Attorney Jane Henkel of the Wisconsin Legislative Council, responding to a request for clarification from State Representative David Travis, concluded the constitutional amendment would not "prohibit casino-type gambling under the existing 11 compacts between the state and Indian tribes." Jane R. Henkel, Deputy Director, Legislative Council, Letter to Representative David Travis, June 19, 1992 (emphasis in original).

¶ 34. Similarly, in preparation for the June 30, 1992, special session, then-State Representative John Medinger sought clarification from then-Attorney General Doyle regarding, among other things, the potential effects of the proposed constitutional amendment on the existing compacts. John D. Medinger, State Representative, Letter to Attorney General James E. Doyle, June 22, 1992. The Attorney General responded on June 24, 1992, and stated that because the amendment was presumed to be prospective and because the compacts did not have a provision that made the compacts ineffective upon a change in state law, the proposed amendment "would not affect compacts which already exist." James E. Doyle, Attorney General, Letter to Representative Medinger, June 24, 1992. The Attorney General wrote similar letters to this effect to other legislators. See, e.g., Letter to Representative Marlin Schneider, February 3, 1993.

¶ 35. After the June 30, 1992, vote, but prior to the second consideration, the Deputy Director for the Assembly Democratic Caucus informed the Democratic members of the Assembly that the "existing tribal-state gaming compacts will continue for seven years and will not be affected by the change." Dan Rossmiller, Assembly Democratic Caucus Deputy Director, Memorandum to Assembly Democrats, July 7, 1992.

¶ 36. These records clearly demonstrate that the legislators voted to pass the constitutional amendment with the understanding that the Original Compacts would survive the amendment. We thus conclude that the Wisconsin Legislature did not intend the 1993 Amendment to invalidate the Original Compacts.

b

¶ 37. We next turn to the ratification campaign that surrounded the voters' passage of the 1993 Amendment. This court presumes that, when informed, the citizens of Wisconsin are familiar with the elements of the constitution and with the laws, and that the information used to educate the voters during the ratification campaign provides evidence of the voters' intent. State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 192-94, 204 N.W. 803 (1925). "[W]here such intention appears, the construction and interpretation of the acts must follow accordingly." Id.

¶ 38. Wisconsin citizens voted to ratify the 1993 Amendment to Article iy Section 24 on April 6, 1993. Public statements and news accounts leading to the April 6 vote demonstrate that voters were informed that the 1993 Amendment would not affect the Original Compacts, and polls released days prior to the April 6, 1993, vote indicate that most voters did not want to make the Tribal gaming casinos illegal.

¶ 39. The vast majority of news articles reported to the voters that the 1993 Amendment would not impact the Original Compacts.³² For example, the Milwaukee Sentinel reported that then-Attorney General Doyle did "not believe enactment of the amendment would affect Indian casinos operating under terms of the current state-tribal gambling compacts signed in 1991 and 1992." Amy Rinard, Gaming Question Stays Unanswered, Milw. Sent., Mar. 29, 1993. Then-Governor Thompson and "other state lawyers and lawmakers agree[d]." Id.

¶ 40. The Milwaukee Journal also printed a letter to the editor by two lawmakers encouraging passage of the amendment, explaining that voters need not worry about the amendment affecting the existing Tribal casinos because a " 'yes' vote [would] freeze the current level of gambling in Wisconsin and put a constitutional brake on new, expanded forms of gambling." Lynn Adelman & Peter Bock, Letter to Editor, Vote 'Yes' on Question 7 to Limit Expansion, Milw. Jour., Mar. 29, 1993.

¶ 41. Editors and columnists similarly concluded that the 1993 Amendment would not affect the Original Compacts. The Wisconsin State Journal explained to voters that "[a] 'yes' vote on the constitutional amendment is not a vote to board up Wisconsin Indian casinos," Tom Still, Gambling Limit Wouldn't Hurt Tribes, Wis. St. Jour., Mar. 22, 1993. The Wisconsin State Journal also encouraged any voter who wanted to ensure the continuation of Tribal casinos to vote in favor of the amendment. Editorial, Don't Know How to Vote? Here Are Some Guidelines, Wis. St. Jour., Apr. 4, 1993.

¶ 42. Voters in Eau Claire were similarly encouraged to vote for the amendment to "limit any further expansion of gambling" and stressed that "[t]here would be no immediate impact on existing casinos because the tribes negotiated compacts with the state that ensures the casinos will remain open for the next seven years." Editorial, "lbs" Vote Won't be End to Casinos, Eau Claire Leader Telegram, Apr. 2,1993 (emphasis added). Green Bay voters were also informed that the "amendment will not affect Indian casinos." Editorial, Vote "íes"... to Freeze Gambling, Green Bay Press Gazette, Mar. 30, 1993 (emphasis added).

¶ 43. In addition, according to a poll conducted by the St. Norbert College Survey Center, released just days before the April 6 vote, 65 percent of those polled believed that "Indian tribes should be allowed to operate gambling casinos on their reservations." John Patrick Hunter, Survey: Taxes Top Worry, Gaming Views Split, The Cap. Times, Mar. 30, 1993. A poll by the University of Wisconsin-Extension Survey Research Laboratory reported similar findings. Id.

¶ 44. We conclude that the vast number of news articles, which informed voters that the amendment would not impact the existing Indian gaming, clearly demonstrates that the voters who ratified the constitutional amendment were informed that the ratification of the 1993 Amendment would not affect the Original Tribal Gaming Compacts. Our "construction and interpretation" of the 1993 Amendment must follow accordingly. Zimmerman, 187 Wis. at 194.

¶ 45. We also find that subsequent legislative action demonstrates that the 1993 Amendment did not invalidate the Original Compacts. The legislature's subsequent actions are a crucial component of any constitutional analysis because they are clear evidence of the legislature's understanding of that amendment. See Schilling, 278 Wis. 2d 216, ¶¶ 16, 23. In the present case, laws enacted immediately following passage of the 1993 Amendment clearly relied on the continuation of the existing Indian gaming compacts.

¶ 46. The 1993 budget, enacted on August 10, 1993, was the first action by the Wisconsin Legislature that mentioned the Tribal gaming compacts subsequent to passage of the 1993 Amendment. The 1993 budget appropriated $330,800 in 1993-94 and $329,000 in 1994-95 from "[m]oneys received by the state from Indian tribes as reimbursement for state costs of regulation of Indian gaming under [the] Indian gaming compacts . . .1993 Wis. Act 16, §§ 153 & 3544(lm)(a) (emphasis added). The Budget Act, therefore, relied on funds from the Class III games authorized by the Original Compacts.

¶ 47. The legislature also passed 1993 Wisconsin Act 174, which made all gaming contracts (debts) void and unenforceable, but which explicitly stated that the "section does not apply to ... state or federal laws relating to the conduct of gaming on Indian lands." 1993 Wis. Act 174, Wis. Stat. § 895.055. Further, 1993 Wisconsin Act 365 created a requirement for the Wisconsin Department of Justice to prosecute violations of the Tribal gaming compacts. 1993 Wis. Act 365, Wis. Stat. § 165.25(3r).

¶ 48. Of significance, the legislature passed 1993 Wisconsin Act 406, enacted on April 21, 1994, which explicitly validated any contract between the State and a federally-recognized Indian Tribe that was entered into prior to May 6,1994. 1993 Wis. Act 406; Wis. Stat. § 992.20(1). This statute, passed one year after the voters ratified the 1993 Amendment, "signal[s] legislative approval of the original compacts." Panzer, 271 Wis. 2d 295, ¶ 100.

¶ 49. In sum, based on the 1993 Amendment's history and the earliest legislative interpretations of that Amendment, we conclude that the 1993 Amendment was not intended to preclude the Tribes from conducting Class III games pursuant to the Original Compacts. Because the Original Compacts are not invalidated by the 1993 Amendment, the terms agreed to in the Original Compacts remain in full effect.

B

¶ 50. We next examine whether the Governor has the authority to renew the Original Compacts. Dairy-land contends that the Class III games operated at the Tribes' casinos are unconstitutional, and therefore the State cannot lawfully renew the compacts. The Governor asserts that the 1993 Amendment cannot force the State to issue a notice of nonrenewal because this would unconstitutionally impair the State's compacts with the 11 Tribes.

¶ 51. Both the Wisconsin and the United States Constitutions prohibit states from impairing their contractual obligations.³³ Article I, Section 12 of the Wisconsin Constitution states: "[n]o bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed[.]" Similarly, Article I, Section 10 of the United States Constitution states, in relevant part: "No state shall. . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts[.]" Although our interpretation of the Contract Clause of the Wisconsin Constitution need not parallel federal interpretations of the Contract Clause of the United States Constitution, "our prior decisions [regarding Contract Clause issues] have relied upon the decisions of the United States Supreme Court." Chappy v. LIRC, 136 Wis. 2d 172, 186, 401 N.W.2d 568 (1987) (citations omitted).

¶ 52. We recognize that the Contract Clause does not place an absolute barrier to a state's power to modify its own contracts. See Wisconsin Professional Police Ass'n, Inc. v. Lightbourn, 2001 WI 59, ¶ 149, 243 Wis. 2d 512, 627 N.W.2d 807. Indeed, "courts will scrutinize the ability of the State to enter into an agreement that limits its power to act in the future." Id. (quotation omitted). We further recognize that a state cannot contract away its police powers. Stone v. Mississippi, 101 U.S. 814, 818 (1879). See also City of Superior v. Roemer, 154 Wis. 345, 357, 141 N.W. 250 (1913). States may similarly adjust their contractual obligations to safeguard the public welfare.³⁴ Moreover, a state's power to impair pre-existing contracts is not limited to those contracts that are hostile to public morals, health, or safety. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 437 (1934).

¶ 53. Yet, if a state could change the rules governing its contractual obligations whenever it saw fit, the Contract Clause would offer no protection at all.³⁵ Indeed, as the United States Supreme Court has explicitly recognized:

If the Contract Clause is to retain any meaning at all... it must be understood to impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power. . . . Even when the public welfare is invoked as an excuse. . . , the security of a mortgage cannot be cut down without moderation or reason or in a spirit of oppression."

Wipperfurth v. U-Haul Co. of W. Wisconsin, 101 Wis. 2d 586, 594-95, 304 N.W.2d 767 (1981) (citing Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 242-43 (1978) (citations omitted) (emphasis in original)). An historical analysis of the Contract Clause further explains courts' attempts to balance the state's police powers against the freedom to contract:

[T]he [United States Supreme] Court developed the theory that with regard to public contracts, there were certain attributes of state sovereignty that could not be contracted away. . . . The Court, when it could, construed the underlying contract as not providing for the giving up of the sovereign power. ... If the state did in fact contract away certain powers, then the Court would hold that certain attributes of state power could not be contracted away at all. This Sovereign Power limitation became an important gloss on the Contract Clause. The more modern Public Purpose Balancing Test, developed later, largely supplants the need for this exception, but it is still of some importance.

James M. McGoldrick, Jr., Limits on States, 17 (2005) (emphasis added).

¶ 54. Attempting to strike a balance between the states' contractual obligations and the public welfare, the United States Supreme Court has established a three-step methodology used in analyzing impairment of contract claims. Lightbourn, 243 Wis. 2d 512, ¶ 146 (citation omitted). This balancing test is rooted in "the Framers' intent to protect contract rights from the 'fluctuating policy' of the state." McGoldrick, supra, 31.³⁶ This court generally follows this three-step methodology in evaluating impairment of contract claims. Lightbourn, 243 Wis. 2d 512, ¶ 146.

¶ 55. To demonstrate that a contract has been unconstitutionally impaired, a complaining party must first establish beyond a reasonable doubt that the legislature changed the law after the formation of the contract and that the operation of the contract is substantially impaired by this change. See Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411 (1983) (citation omitted); Reserve Life Ins. Co. v. La Follette, 108 Wis. 2d 637, 644, 323 N.W. 2d 173 (Ct. App. 1982). The impairment must be substantial; a minimal change of contractual obligations may end the inquiry. Lightbourn, 243 Wis. 2d 512, ¶ 147. On the other hand, the severity of the impairment increases the level of scrutiny to which the legislation will be subjected. Energy Reserves Group, 459 U.S. at 411.

¶ 56. Second, if a law substantially impairs an already existing contractual relationship, the state, in justification, must have a significant and legitimate public purpose for the legislation. Id. See also Spannaus, 438 U.S. at 244; Lightbourn, 243 Wis. 2d 512, ¶ 148.

¶ 57. Finally, if a significant and legitimate public purpose exists for the legislation, the question becomes whether the legislature's impairment of contract is reasonable and necessary to serve that purpose. Lightbourn, 243 Wis. 2d 512, ¶ 149. In assessing the reasonableness of a constitutional amendment, the United States Supreme Court evaluates whether the social concerns that prompted the changes were foreseeable when the state entered into the compact, and whether the conditions have changed sufficiently since the state entered the contract. See U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 31-32 (1977).

¶ 58. In the present case, the State of Wisconsin and the 11 Tribes have had an ongoing relationship since the parties entered into the Original Compacts more than a decade ago.³⁷ As this court recognized in Panzer, the parties clearly have a reliance interest in the continuation of the Original Compacts, and this court has already recognized that "[a]ny attempt at this point to impair these compacts would create serious constitutional questions." Panzer, 271 Wis. 2d 295, ¶ 99.

¶ 59. In the following analysis, we examine whether the 1993 Amendment applies to renewals of the Original Compacts. We then examine whether the Contract Clause precludes interpreting the 1993 Amendment as a statement of public policy against gaming that forces the State to exercise its right of nonrenewal. Finally, we examine whether the Amendment applies to the scope of Class III games negotiated under the terms of the Original Compacts.

¶ 60. Because we have concluded that the 1993 Amendment does not invalidate the Original Compacts, whether the 1993 Amendment applies to renewals of the Original Compacts depends upon whether the "renewal" constitutes a new contract or a continuation of the pre-existing contractual relationship. This is because, in general, the laws in existence at the time of the contract are incorporated into that contract:

[T]he laws which subsist at the time and place of the making of a contract... enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement.

See Von Hoffman v. City of Quincy, 71 U.S. 535, 550 n.30 (1866). Subsequent changes to a law will not interfere with an existing contract. Reserve Life, 108 Wis. 2d at 645-47. When a law changes, however, contracts entered into after the date of a change in law are subject to the new law. Bronson v. Kinzie, 42 U.S. 311, 321 (1843).

¶ 61. Our analysis of a contractual renewal provision focuses primarily upon the intent of the parties when they entered into the contract.³⁸ Reserve Life, 108 Wis. 2d at 645 (interpreting insurance contracts); Meyers v. Wells, 252 Wis. 352, 357, 31 N.W. 2d 512 (1948) (interpreting employment contracts); Seefeldt v. Keske, 14 Wis. 2d 438, 442, 111 N.W. 2d 574 (1961) (interpreting lease agreements). The parties' intent can be determined through the language of the contract itself. See Swan Sales Corp. v. Jos. Schütz Brewing Co., 126 Wis. 2d 16, 25, 374 N.W. 2d 640 (Ct. App., 1985); Reserve Life, 108 Wis. 2d at 645.

¶ 62. In the present case, each of the Original Compacts contains a provision that addresses Tribal ordinances and State law: "To the extent that State law or Tribal ordinances, or any amendments thereto, are inconsistent with any provision of this Compact, this Compact shall control."³⁹

¶ 63. Under the plain terms of the Original Compacts, therefore, changes in State law do not impact the compacts. The parties clearly intended to preserve the law as it existed in 1991-92, and to prevent the application of changes to the State's or Tribes' laws to the Original Compacts.

¶ 64. In addition, if renewals of the compacts constitute extensions of the Original Compacts, because the 1993 Amendment does not apply to the Original Compacts, the Amendment would not apply to extensions of the same. Courts have found that renewal of a contract that contains language which explicitly provides for automatic renewal, and does not, therefore, require an affirmative act by either party in order to renew, constitutes a continuation of the pre-existing contractual relationship and not a "fresh decision" to continue. Swan Sales, 126 Wis. 2d at 26. Contrast Kealey Pharm. v. Walgreen Co., 539 F. Supp. 1357, 1363 (W.D. Wis. 1982), affirmed in part and vacated in part, 761 F.2d 345 (7th Cir. 1985) (concluding the renewal of a pre-existing contract constituted a new contract because the contract contained no provisions for renewal). Thus, we begin with the language of the Original Compacts to determine whether the State and the Tribes intended the renewal at the expiration of the compact term to constitute a continuation of the pre-existing compact, or whether they intended that a renewal constitute a new agreement between the parties.

¶ 65. The parties' intent is clearly evinced through the language of the Original Compacts. The Original Compacts state that the compact is "automatically extended" unless either party exercises its right of nonrenewal.⁴⁰ The plain language of the compacts demonstrates that the parties intended the compacts to continue unless terminated. The use of the word "extended" signifies a continuation of the existing contract rather than the creation of a new one; the pertinent dictionary definition of "extended" is "[c]ontinued for a long period of time." The American Heritage Dictionary of the English Language 55 (3d ed. 1992). Renewal occurs automatically, and only an affirmative act by one of the parties terminates the continuation of the compacts. Like Swan Sales, the Original Compacts automatically renew; subsequent renewals are not "fresh decisions" by the parties to conduct business, but merely a continuation of pre-existing relationships. See Swan Sales, 126 Wis. 2d at 25, 26.

¶ 66. We therefore conclude that "renewals" constitute continuations of the Original Compacts and do not constitute new, independent contracts. Because the 1993 Amendment did not apply to the Original Compacts, the Amendment does not apply to continuations or extensions of the Original Compacts.

¶ 67. We have already concluded that the 1993 Amendment does not invalidate the Original Compacts, extensions, or continuations thereof. Therefore, the terms agreed upon in the Original Compacts, and the laws in effect at the time the contract was entered into, control the Tribal casinos operating under the authority of Original Compacts.⁴¹ Nevertheless, Dairyland asserts that the 1993 Amendment forces the State to affirmatively exercise its right of nonrenewal. According to Dairyland, because the 1993 Amendment makes the Class III games currently operated at the Tribal casinos unconstitutional, even if the 1993 Amendment does not apply to the Original Compacts, the State cannot continue to operate under a contract that is in violation of the constitution and, therefore, the State must exercise its right of nonrenewal. Dairyland contends that requiring nonrenewal does not impair the compacts because each compact contains a provision that allows either party to terminate each compact. We therefore examine whether forcing the State to take the affirmative step and exercise its right of nonrenewal constitutes an unconstitutional impairment of the Original Compacts.

¶ 68. As discussed above, each of the Original Compacts includes a provision that allows either party to give a written notice of nonrenewal that would require the Tribe to cease all Class III gaming upon the expiration date of the compact.⁴² Upon a party's exercising the right of nonrenewal, the compacts instruct the parties to enter into negotiations for successor compacts.⁴³ A successor compact constitutes a new compact.

¶ 69. Assuming that the 1993 Amendment precludes those Class III games explicitly prohibited by Art. iy sec. 24⁴⁴ in any compact negotiated after 1993,⁴⁵ no Class III casino game can be the proper subject of any new compact negotiation,⁴⁶ save the few specifically exempted Class III games: bingo games operated by charitable and religious organizations,⁴⁷ raffle games operated by charitable and religious organizations,⁴⁸ pari-mutuel on-track betting,⁴⁹ and the state-operated lottery.⁵⁰ As a result, forcing the State to exercise its right of nonrenewal, thereby forcing the State to negotiate new compacts, would remove the State's authority to negotiate for any Class III games, except the limited games specifically authorized by the Constitution.

¶ 70. The operation of Class III games on Tribal land was a material consideration in the compact negotiations:

The parties acknowledge that the mutual compromises with respect to the types of games the Tribe is authorized to operate during the term of this Compact and with respect to the duration of this Compact were significant material considerations in reaching agreement and are the essence of this Compact.⁵¹

Forcing nonrenewal, thereby requiring the parties to negotiate for new compacts under which most forms of Class III games are non-negotiable, would therefore constitute a "severe disruption of contractual expectations." See Wipperfurth, 101 Wis. 2d at 598. Compare Justice Prosser's concurrence/dissent, ¶ 262. The compacts would be substantially impaired because forcing nonrenewal would put the parties in a position where they could no longer contract for the games that were part of the Original Compacts because of the Amendment. Forcing the State to negotiate new compacts would thus severely impair, indeed eliminate, the State's contractual rights to continue any Class III games excluded by the Amendment. See State ex rel. Cannon v. Moran, 111 Wis. 2d 544, 558, 331 N.W.2d 369(1983) (citing Spannaus, 438 U.S. 234). Because applying the 1993 Amendment to the Original Compacts interferes "with freedom of contract guaranteed by the Fourteenth Amendment," we have a duty to inquire further. Fairmont Creamery Co. v. State of Minn., 274 U.S. 1, 11 (1927).

¶ 71. The United States Supreme Court has concluded that the severe impairment of a contract is entitled to heightened scrutiny. Spannaus, 438 U.S. at 245 ("The severity of the impairment measures the height of the hurdle the state legislation must clear."). Furthermore, because the State is a party to the contract in question, this court gives less deference to the legislature's "assessment of reasonableness and necessity. . . because the State's self-interest is at stake." Energy Reserves Group, 459 U.S. at 412-13 n.14 (quotation and citation omitted). Therefore, the remaining analyses as to whether the State had a significant and legitimate public purpose, and whether the Amendment was reasonable and necessary to meet that purpose, are subject to a heightened level of scrutiny. Cannon, 111 Wis. 2d at 559.

¶ 72. Under the impairment of contracts analysis, the State is not prohibited from passing a law that substantially impairs an existing contractual obligation as long as the impairment is justified under a significant and legitimate public purpose, and the constitutional amendment is reasonable and appropriate to advance that purpose. Lightbourn, 243 Wis. 2d 512, ¶ 148; Cannon, 111 Wis. 2d at 559; U.S. Trust, 431 U.S. at 25-26. We therefore examine whether any legitimate public purpose would justify impairing the State's contractual obligation to the Tribes under the Original Compacts, and whether impairment would be reasonable.

¶ 73. We note that the State's interests are less compelling when the inquiry involves Tribal sovereigns because state laws and policies do not extend to Tribal lands unless authorized by Congress. Cohen's Handbook of Federal Indian Law, at 865, supra, n.35; S. Rep. No. 446, 100th Cong., 2nd Sess. 5 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3075. Congress passed IGRA to establish federal standards for gaming on Indian lands, 25 USC § 2702(3), and to allow state involvement through compacts with regard to Class III gaming. Panzer, 271 Wis. 2d 295, ¶ 15. However, IGRA blocks the operation of state policy with regard to a valid compact once that compact has been executed under IGRA's authority. See Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 544-45 (8th Cir. 1996). Moreover, without a valid compact, state laws have no regulatory power over gaming on Tribal land, and states have no authority to police Tribal casinos. See Sycuan Band v. Roche, 54 F.3d 535 (9th Cir. 1994); Florida v. Seminole Tribe, 181 F.3d 1237 (11th Cir. 1999).

¶ 74. We recognize that regulation of gambling is a legitimate public purpose.⁵² We also recognize that this Amendment could be construed as a strong state policy against all gaming. See Panzer, 271 Wis. 2d 295, ¶ 94. However, the purpose of the 1993 Amendment was to make only some forms of Class III games unconstitutional in Wisconsin, but excluded pari-mutuel on-track betting, the state lottery, and Class III games operated pursuant to the Original Compacts. Neither the legislature nor Wisconsin's citizens intended the 1993 Amendment to invalidate the games operated pursuant to the Original Compacts. Therefore, even if the Amendment embodies a strong public policy against some games, it does not embody a public policy against the games operated by the Tribes under the authority of the Original Compacts. Although Wisconsin was not precluded from doing so, the State did not exercise its sovereign police power in an effort to ban gaming under the Original Compacts. Contrast Justice Roggensack's concurrence/dissent, ¶¶ 318-19. Wisconsin did not abrogate its sovereign police powers with regard to gaming; the State simply decided to exclude the Original Compacts from the constitutional prohibition on gaming.

¶ 75. We further conclude that it would be unreasonable for the 1993 Amendment to interfere with the provision that allows for extending or continuing the Original Compacts. See Lightbourn, 243 Wis. 2d 512, . To determine the reasonableness of a constitutional amendment, we evaluate whether the social concerns that prompted the changes were foreseeable when the State entered into the compact, and whether the conditions have changed sufficiently since the State entered the contract. See U.S. Trust, 431 U.S. at 31-32.

¶ 76. To a certain extent, because gaming had been regulated in the past, it was not entirely unforeseeable that the State might regulate gamingin the future.⁵³ Yet, the parties anticipated future regulations on Tribal gaming and negotiated to exclude changes in State and Tribal law from impacting the Original Compacts:⁵⁴ "To the extent that State law or Tribal ordinances, or any amendments thereto, are inconsistent with any provision of this Compact, this Compact shall control."⁵⁵

¶ 77. It was not foreseeable, however, that the 1993 Amendment would invalidate the future operations of the Tribal casinos. The Governor and legislature considered the constitutional amendment during the same time period that the Governor was engaged in compact negotiations with the Tribes. In addition, as discussed above, according to legislative records and most news accounts, the 1993 Amendment was not intended to invalidate the Original Compacts. The legislature also discussed that the Contract Clause would prevent the amendment from closing down Tribal casinos. See Justice Prosser's concurrence/ dissent, ¶ 232. Moreover, shortly after the 1993 Amendment was ratified, the Tribes made significant investments to construct and operate casinos pursuant to the terms of the Original Compacts,⁵⁶ and the State legislature enacted laws that explicitly validated the Original Compacts and relied on proceeds from the casinos.⁵⁷ These records, and the parties' performance following the ratification of the compacts, reveal that the parties did not foresee that the 1993 Amendment would invalidate the extension provisions.

¶ 78. Additionally, the conditions have not changed substantially since passage of the 1993 Amendment. Neither party has altered its rebanee on the compacts. The parties' actions demonstrate that there was little doubt as to the continued legality of the casino gaming pursuant to the Original Compacts. The State has continued to rely on revenue from the compacts,⁵⁸ and the Tribes have continued to invest in and operate the casinos.⁵⁹

¶ 79. Therefore, although the prohibition of casino gaming can be a significant and legitimate State interest, we conclude that the State's interest in prohibiting gaming does not pass the heightened scrutiny test with respect to gaming on Tribal land because the 1993 Amendment did not apply to games operated pursuant to the Original Compacts, and because a retroactive prohibition on Tribal gaming would unreasonably interfere with the Original Compacts.

IV

¶ 80. We have concluded, both in this case and in Panzer.;⁶⁰ that the 1993 Amendment does not invalidate the Original Compacts. We have also concluded that the 1998-99 extensions are valid continuations of the Original Compacts, and therefore not invalidated by the 1993 Amendment. Dairyland nonetheless asks us to conclude that the 1993 Amendment prohibits the State from amending the compacts to include any Class III game that was not included in the Original Compacts.⁶¹

¶ 81. Because the 1993 Amendment does not apply to the Original Compacts, the terms of the compacts control whether the parties can amend the compact to expand the scope of Class III gaming. This analysis depends upon the intent of the parties when they entered into the compact. See DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. P'ship, 2004 WI 92, ¶ 44, 273 Wis. 2d 577, 682 N.W.2d 839 ("The ultimate aim of all contract interpretation is to ascertain the intent of the parties.") (citations omitted). The intent of the contracting parties can be evinced through the plain language of the Original Compacts and the history of the compact negotiations.

¶ 82. The parties included provisions in each of the compacts that relate to future amendments to the types of games allowed on Tribal land. Each of the 11 compacts states: "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."⁶² The Compacts further provide that: "This Compact shall not be modified, amended or otherwise altered without the prior written agreement of both the State and the Tribe."⁶³ This language clearly reveals that the Compacts allow the parties to agree to amend the scope of Class III games. These provisions create a contractual obligation to allow new games should the parties agree to amend the scope of gaming.⁶⁴

¶ 83. These provisions demonstrate the parties' intent to allow for amendments, including to the scope of gaming; the compacts do not contain "an agreement to agree." Contrast Dunlop v. Laitsch, 16 Wis. 2d 36, 42, 113 N.W.2d 551 (1962).⁶⁵ In Dunlop, the parties promised to form another contract in the future. Id. In this case, there is no comparable provision. The compacts contain a provision stating that the compacts can be amended. There is no putative promise to actually amend the Compacts in the future; they simply provide that such an amendment is permissible.

¶ 84. In addition, even if we determined that these provisions are indefinite, the parties' subsequent conduct clearly evinces their intent to amend the scope of gaming. See Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 179-80, 557 N.W.2d 67 (1996). Moreover, because the scope of gaming is a material provision in the compacts, see supra, ¶ 70, if we were to find these material provisions to be indefinite, the compacts would be void and unenforceable. Management Computer, 206 Wis. 2d at 178. See also Dunlop, 16 Wis. 2d at 43a.⁶⁶ Instead, we conclude that, should the parties agree to amend the scope of gaming, the compacts clearly obligate the parties to abide by such amendments.

¶ 85. Furthermore, when the Governor and the various Tribes first attempted to negotiate gaming compacts, the Governor refused to negotiate over Class III games, asserting that such games were illegal under Wisconsin law and therefore not a proper subject of negotiation. Lac du Flambeau, 270 F. Supp. at 481. The Lac du Flambeau Tribe of Lake Superior Indians and the Sokaogon Chippewa Community sued the Governor for failing to negotiate in good faith. Id. at 484. The United States District Court for the Western District of Wisconsin concluded that because Wisconsin did not prohibit outright all Class III games, Wisconsin was a regulatory state and, therefore, the State was required to negotiate with the Tribes for any game of prize, chance, and consideration that was not expressly prohibited by Wisconsin law. Lac du Flambeau, 270 F. Supp. at 488; Panzer, 271 Wis. 2d 295, ¶ 99. Therefore, the parties negotiated for the amendment provision under the auspices of the law as interpreted by the court in Lac du Flambeau, under which all Class III games are negotiable.⁶⁷

¶ 86. We therefore conclude that the parties intended to allow the compacts to be amended, including authorizing additional forms of Class III gaming.

¶ 87. Justice Prosser, in his concurrence/dissent, contends: "if state law prohibits a Class III gaming activity, the governor's power to negotiate that activity is circumscribed." Justice Prosser's concurrence/ dissent, ¶ 243 (citing Panzer, 271 Wis. 2d 295, ¶ 89). Justice Prosser summarizes his conclusion:

[T]he Wisconsin state government, including Wisconsin governors, may agree to amendments of gaming compacts to add forms of gaming activity that are permitted by state law 'for any purpose by any person, organization, or entity,' but may not add forms of gaming activity that are prohibited by state law for all purposes to all persons, organizations, and entities.

Id., ¶ 107 (citations omitted).

¶ 88. Justice Prosser's arguments regarding the scope of gaming are structurally unsound. Although the Wisconsin Constitution prohibits blackjack, slot machines, and video gaming machines, art. I\( sec. 24(6)(c),⁶⁸ and even though Justice Prosser and the Panzer majority conclude that the Governor lacks the authority to approve amendments to the Original Compacts that are "explicitly prohibited by the Wisconsin Constitution," Justice Prosser's concurrence/dissent, ¶ 240, Panzer, 271 Wis. 2d 295, ¶ 96, these conclusions conveniently neglect to mention that blackjack, slot machines, and video gaming machines are also explicitly prohibited by the Constitution.

¶ 89. The only way to conclude that the 1993 Amendment limits the scope of gaming allowable under the Original Compacts is to conclude that the 1993 Amendment applies to the Original Compacts.⁶⁹ Under the analysis proposed by Justice Prosser, if the amendment applies to the scope of gaming, then blackjack, slot machines, and video gaming machines included in the Original Compacts are now unconstitutional. Yet, Justices Prosser and Roggensack deem blackjack, slot machines, and video gaming machines, authorized under the Original Compacts, to be lawful.⁷⁰ Similarly, if the Amendment applies to the Original Compacts, the addition of 800 slot machines to the Potawatomi Compact, and the decision to allow for the first time blackjack games at the Potawatomi Tribe's casino in Meno-monee Valley, which were both included in the 1998-99 extensions, are constitutionally prohibited forms of Class III gaming. Taken to its logical conclusion, under the analysis proposed by Justice Prosser's concurrence/dissent, the Tribes cannot conduct these games because they are now unconstitutional.

¶ 90. Either the Original Compacts are fully in force or they are not — it cannot he both ways. This court cannot, and should not, impose the court's own values by deciding that some Class III games are not as substantial, and therefore protected by the Original Compacts, and that other games are too substantial to be protected.

¶ 91. Because we conclude that the Original Compacts were not invalidated by the 1993 Amendment, and that the compacts have been lawfully extended, the Original Compacts are in full force. The Original Compacts specifically contemplated amending the compacts, including the type of Class III games that can be conducted on Tribal land.⁷¹ In addition, as this court has previously stated, "if the provision of the constitution or the legislative act of a state" impairs a substantial contractual right, the constitutional provision or statute is "utterly void. They are, for all the purposes of the contract which they impair, as if they had never existed." Peninsular Lead & Color Works v. Union Oil & Paint Co., 100 Wis. 488, 493, 76 N.W. 359, 361 (1898). In other words, the law at the time the Original Compacts were entered into controls the compacts.⁷² The parties negotiated under the Lac du Flambeau decision, under which all Class III games were negotiable. Therefore, the Class III games that the State and Tribes agreed to in their compact extension negotiations are lawful.⁷³ We withdraw any language to the contrary in Panzer that would limit the State's ability to negotiate for Class III games under the Original Compacts.⁷⁴

¶ 92. Justice Roggensack criticizes this decision for failing to follow Panzer in its entirety. She contends that decisions of this court are final unless they are set aside on a motion for reconsideration or overturned by a federal court on a federal question. Justice Roggensack's concurrence/dissent, ¶ 286. Because Panzer concluded that the 2003 compact extensions were unconstitutional, she asserts that Panzer only left open the question as to whether the types of games lawfully compacted in 1991-92 retained their lawful status after 1993. Id., ¶ 290. Justice Roggensack accuses the majority of surrendering the judicial independence of the court to the demands of the Governor because we address the scope of gaming. Id., ¶ 286.

¶ 93. It is true that, in general, this court adheres to stare decisis to maintain confidence in the reliability of court decisions, promote evenhanded, predictable, and consistent development of legal principles, and contribute to the actual and perceived integrity of the Wisconsin judiciary. Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶ 95, 264 Wis. 2d 60, 665 N.W.2d 257 (citations omitted). However, this court has also concluded that prior decisions should not be perpetuated if they were wrongly decided in the first place. "We do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision." Id., ¶ 100.

¶ 94. We again note that these contract impairment concerns were explicitly left unresolved by this court in Panzer, 271 Wis. 2d 295, ¶ 102. We find it disingenuous that some members of the Panzer majority refused to reach the Contract Clause analysis that was properly before it,⁷⁵ and now criticize the Dairy-land majority opinion for deciding the issue. This decision has nothing to do with making one Governor look bad and another Governor look good.⁷⁶ We have simply reached the issue left unresolved by this court in Panzer.

V

¶ 95. Upon examining the impairment of contracts issues raised by the 1993 Amendment to the Wisconsin Constitution with regard to the Original Compacts between the State and Tribes, we conclude that the 1993 Amendment to Article iy Section 24 of the Wisconsin Constitution did not invalidate the Original Compacts. Because the Original Compacts contemplated extending and amending the scope of Indian gaming, the parties' right of renewal is constitutionally-protected by the Contract Clauses of the United States and Wisconsin Constitutions; and amendments to the Original Compacts that expand the scope of gaming are likewise constitutionally protected by the Contract Clauses of the Wisconsin and United States Constitutions. Therefore, we affirm the order of the circuit court. Accordingly, gaming can be expanded to the extent that the State and Tribes negotiate for additional Class III games. We withdraw any language to the contrary in Panzer that would limit the State's ability to negotiate for Class III games under the Original Compacts.⁷⁷

By the Court. — The order of the circuit court for Dane County is affirmed.

1 Marc J. Marotta was the Secretary of the Department of Administration at the time this action was filed. Subsequently, Stephen E. Bablitch was appointed as the Secretary of DOA in September 2005 and the caption of this case has been amended to reflect the change.

2 Dairyland Greyhound Park, Inc. v. Doyle, certification by Wisconsin Court of Appeals (June 2, 2003).

3 Justice Prosser, in his concurrence/dissent, asserts that we conclude that the 1993 Amendment "had no impact on Indian gaming." Justice Prosser's concurrence/dissent, ¶ 277. This is a misstatement of the holding of this case. We conclude that the 1993 Amendment did not invalidate the Original Compacts. Whether the 1993 Amendment has any impact on Indian gaming outside the Original Compacts, is not before this court.

4 See, e.g., Panzer v. Doyle, 2004 WI 52, ¶¶ 93, 96, 271 Wis. 2d 295, 680 N.W.2d 666. We do not address the Panzer court's decision regarding the duration provisions. Id., ¶¶ 78-82.

5 Oliphant v. Schlie, 544 F.2d 1007, 1013 (9th Cir. 1976) (reversed on other grounds by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (superseded by 25 USC § 1301 (1979).)) ("Reluctance on the part of the States to accord to the Indians rights guaranteed to them by treaties still exists.") (citing United States v. Washington, 520 F.2d 676 (9th Cir., 1975)). See also, Harrison v. Boyd Mississippi, Inc., 700 So.2d 247, 253 (Miss. 1997); Dille v. Council of Energy Resource Tribes, 610 F. Supp. 157, 159 (D.C. Colo. 1985).

6 Under the Wisconsin Constitution: "Except as provided in this section the legislature may not authorize gambling in any form." Wis. Cons. art. IV § 24, cl. 1. Various subsections of Article IV allow the legislature to authorize specific gambling activities. Id., cl. 3 (2003-04) (authorizing "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"); id., cl. 4 (authorizing "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"); id., cl. 5 (authorizing pari-mutuel on-track betting); id., cl. 6 (authorizing the state-operated lottery).

All references to the Wisconsin Constitution and Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

7 Justice Roggensack asserts that the only issue before this court is the effect of the 1993 Amendment as it relates to the games that were included in the Original Compacts and the 1998-99 extensions. Justice Roggensack's concurrence/dissent, ¶ 285. This is an inaccurate statement of the case. This court has been asked to review the impact of the 1993 Amendment on all extensions of and amendments to the Original Compacts.

8 "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed ...." Wis. Const, art. I, § 12.

9 "No state shall enter into any treaty, alliance, or confederation; ... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts ...." U.S. Const, art. I, § 10.

10 The Supremacy Clause of the United States Constitution states, in relevant part,

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

U.S. Const, art. VI.

11 The Governor asserts that the State has contractual rights and obligations under the Original Compacts. We do not construe the Governor, as Justice Roggensack asserts, to be arguing on behalf of the Tribal Nations against the Wisconsin Constitution. See Justice Roggensack's concurrence/dissent, ¶ 287.

12 Because our decision resolves the dispute between the parties, we do not reach the issues presented regarding the Indian Gaming Regulatory Act, 25 USC § 2710(d)(3)(c) (1988), ("IGRA") or any federal preemption issues the 1993 Amendment may raise under the Supremacy Clause of the United States Constitution.

13 In 1991, United States District Court Judge Barbara 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." Lac du Flambeau Band of Lake Superior Chippewa Indians v. State of Wisconsin, 770 F. Supp. 480, 488 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992).

14 In 1988, Congress passed IGRA. IGRA divided gaming into three classes: Class I was left unregulated; the National Indian Gaming Commission (NIGC) was established to regulate Class II gaming, and Indian Tribes and states were authorized to compact for the regulation of Class III gaming. 25 USC § 2710. Class III gaming is defined as all forms of gaming that are not Class I or Class II gaming, which include lotteries, pari-mutuel on-track betting, and casino-type games. § 2703(8) (2001). Class I gaming includes games of "minimal value" as well as traditional forms of Indian gaming, § 2703(6), while Class II gaming includes bingo and certain state-authorized or unregulated card games. § 2703(7).

In enacting IGRA, Congress offered states a limited role in regulating casino-style gaming. Congress passed IGRA following the United States Supreme Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), where the United States Supreme Court adopted the prohibitory/regulatory distinction for gaming regulations on Tribal lands:

[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation.

Id. at 209; Panzer, 271 Wis. 2d 295, ¶ 15, ("IGRA follows the spirit of Cabazon by making the permissibility of Class III games a function of state law.").

Congress passed IGRA in an effort to encourage the formation of state and Tribal gaming compacts. IGRA's purpose is to serve the Tribal interest "of promoting tribal economic development, self-sufficiency, and strong tribal governments" and the states' interests in regulating gaming within their borders. 25 USC § 2702(1).

15 Wisconsin Stat. § 14.035 states: "The governor may, on behalf of this state, enter into any compact that has been negotiated under 25 USC 2710(d) [IGRA]." This court has subsequently ruled that this legislation is not unconstitutional beyond a reasonable doubt. Panzer, 271 Wis. 2d 295, ¶ 72.

16 The State entered into compacts with the following 11 Indian tribes: Bad River Band of Lake Superior Chippewa; Forest County Potawatomi Community of Wisconsin; Ho-Chunk Nation (previously the Wisconsin Winnebago Tribe); Lac Courte Oreilles Band of Lake Superior Chippewa; Lac du Flambeau Band of Lake Superior Chippewa; Menominee Tribe of Indians of Wisconsin; Oneida Tribe of Indians of Wisconsin; Red Cliff Band of Lake Superior Chippewa; Sokaogon Chippewa Community (Mole Lake Chippewas); St. Croix Chippewa Indians of Wisconsin; Stockbridge-Munsee Band - Mohican Nation. Copies of the Original Compacts are available at http://www.doa. state.wi.us/pagesubtext_detail.asp?linksubcatid=922&linkcatid= 81&linkid=.

17 Supra, note 14 for a discussion regarding Class III gaming under IGRA.

18 Clauses 3 through 6 list exceptions to the broad prohibition, including: 1) bingo games operated by charitable and religious organizations; 2) raffle games operated by charitable and religious organizations; 3) pari-mutuel on-track betting; and 4) the state-operated lottery. Wis. Const, art. W § 24.

19 1989 Wis. Act 196 (creating Wis. Stat. § 14.035); Panzer, 271 Wis. 2d 295, ¶ 60.

20 The Wisconsin Governor completed the compact negotiations pursuant to the decision in Lac du Flambeau, 770 F. Supp. at 488. See supra, note 13.

21 Ten of the Original Compacts state, in relevant part:

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.

Bad River Band of Lake Superior Tribe of Chippewa Indians & State of Wisconsin Gaming Compact of 1991 § XXV(B); Forest County Potawatomi Community of Wisconsin & State of Wisconsin Gaming Compact of 1992 § XXV(B); Wisconsin Winnebago Tribe [Ho-Chunk Nation] & State of Wisconsin Compact of 1992 § XXVI(B); Lac Courte Oreilles Band of Lake Superior Chippewa Indians & State of Wisconsin Gaming Compact of 1991 § XXV(B); Lac du Flambeau Band of Lake Superior Chippewa Indians & State of Wisconsin Gaming- Compact of 1991 § XXV(B); Oneida Tribe of Indians of Wisconsin & State of Wisconsin Gaming Compact of 1991 § XXV(B); Red Cliff Bank of Lake Superior Chippewas & State of Wisconsin Gaming Compact of 1991 § XXV(B); Sokaogon Chippewa Community & State of Wisconsin Gaming Compact of 1991 §XXV(B); St. Croix Chippewa Indians of Wisconsin & State of Wisconsin Gaming Compact of 1991 § XXV(B); Strockbridge-Munsee Community & State of Wisconsin Gaming Compact of 1991 § XXV(B) (emphasis added). See also Menominee Indian Tribe of Wisconsin & State of Wisconsin Gaming Compact of 1992 § XXVI(1)(B) ("The duration of this Compact with respect to on-reservation gaming shall thereafter be automatically extended for terms of five years, unless either party serves written notice of non-renewal on the other party not less than one hundred eighty days prior to the expiration of the term specified in subsec. A. or any extension thereof.") (emphasis added).

22 Each of the 11 Original Compacts also states, in relevant part, "The Tribe may not operate any Class III gaming not expressly enumerated in this section of this Compact unless this Compact is amended[.]” Bad River Compact § IV(B); Forest County Potawatomi Community of Wisconsin Compact § IV(B); Winnebago [Ho-Chunk] Compact § IV(C); Lac Courte Oreilles Compact § IV(B); Lac du Flambeau Compact § IV(B); Menominee Compact § IV(B); Oneida Compact § IV(B); Red Cliff Compact § IV(B); Sokaogon Chippewa Compact § IV(B); St. Croix Chippewa Compact § IV(B); Stockbridge-Munsee Compact § IV(B) (emphasis added).

23 The Panzer court recognized that "[t]he Tribe's existing games such as slot machines and blackjack must be sustained on the basis of the validity of the original compacts. . . ." Panzer, 271 Wis. 2d 295, ¶ 93. The Panzer court noted that the Original Compacts were negotiated pursuant to the federal district court's order in Lac du Flambeau, and that "[a]ny attempt at this point to impair these compacts would create serious constitutional questions." Id., ¶ 99. Neither of the concurring/dissenting opinions in this case discusses the constitutional prohibition with respect to blackjack, slot machines or video gaming, and how they survive the 1993 Amendment. See Justice Prosser's concurrence/dissent, ¶¶ 223, 239, 240-45; Justice Roggensack's concurrence/dissent, ¶ 288. If their premise was indeed correct ("the district court was incorrect in almost every respect"), the logical extension of the concurring/dissenting opinions is that blackjack, slot machines and video gaming, in addition to other forms of Class III gaming, would not survive the 1993 Amendment. Compare Justice Prosser's concurrence/dissent, ¶ 205.

24 We therefore disagree with the Panzer holding that "[t]he text of the constitution[al amendment] is absolutely clear." Panzer, 271 Wis. 2d 295, ¶ 86. Any language in Panzer to the contrary is hereby withdrawn.

25 Wisconsin Stat. § 565.01(6m) reads:

"The state lottery" means an enterprise, including a multi-jurisdictional lottery in which the state participates, in which the player, by purchasing a ticket, is entitled to participate in a game of chance in which any of the following applies:

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.

2. The ticket is evidence of the numbers or symbols selected by the player or, at the player's option, randomly 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.

(b) "The state lottery" does not include any of the following games or games simulating any of the following games: 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 utilizing dice. 6. Keno. 7. Bingo 21, bingo jack, bingolet or bingo craps. 8. Any game of chance that is played 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 known as or considered to be a video gambling machine, except a video device authorized by the department to permit the sale of tickets by retailers in a game authorized under par. (a) if all of the following apply:

a. The device does not determine whether the player has won a prize.

b. The device does not 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. 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 that the department has the authority to conduct under this chapter.

(c) This subsection shall not affect the provisions of any Indian gaming compact entered into before January 1,1993, under s. 14.035.

Wis. Stat. § 565.01(6m).

26 As noted previously, both Wis. Stat. § 565.01 and Senator Adelman's original draft of 1991 SJR 93, the precursor for the 1993 Amendment, were drafted in 1992.

27 We recognize that the legislature rejected an amendment to the ballot question that would have explicitly exempted the Original Compacts. This could be interpreted to mean that the legislature intended to invalidate the Original Compacts. However, the rejection of this amendment is only one act by the legislature, and does not outweigh the vast majority of other legislative records and news reports, discussed in ¶¶ 25-44 of this opinion, that clearly indicate that the 1993 Amendment would not affect the Original Compacts. See Justice Prosser's concurrence/dissent, ¶ 219.

28 We also note that to find otherwise would invalidate Wis. Stat. § 565.01(6m)(c) as unconstitutional because the statute would directly conflict with the 1993 Amendment, and therefore be inconsistent with this court's long-standing policy of finding statutes constitutional whenever possible. Chappy v. LIRC, 136 Wis. 2d 172, 185, 401 N.W.2d 568 (1987) ("[E]very presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality.") (citation omitted).

29 Then-Senator Lynn Adelman introduced 1991 Senate Joint Resolution 93, which was the original legislative attempt to amend Article W Section 24 to make unconstitutional most forms of gambling. Senator Adelman's proposal intended to "freeze" the state of gaming in Wisconsin as it existed in 1991. Jane R. Henkel, Senior Staff Attorney, Wisconsin Legislative Council, Memorandum to Senator Lynn Adelman (February 6, 1992).

30 This proposed amendment passed the Senate but failed in the Assembly due to inaction. Joint Rule 83(c)(3), as amended by 1991 Senate Joint Resolution 1.

31 Under Wis. Stat. § 565.01(6m)(e), the prohibition on most forms of gambling "shall not affect the provisions of any Indian gaming compact entered into before January 1, 1993, under s. 14.035." Wis. Stat. § 565.01(6m).

32 Some news reports did express concern about what the amendment would mean for Indian gaming. See Dan Ritsche, The Evolution of Legalized Gambling in Wisconsin, LRB-00-RB-1, 11-12 (1999); Ron Seely, You Can Bet on It: Gaming Referendum Is Sure to Confuse, Wis. St. Jour., Apr. 4, 1993 ('What, really, will happen [to Indian casinos] if the amendment passes? ... The problem is that nobody really knows.") (emphasis in original); Steve Schultze, Answers Help Shed Light on Amendment Questions, Milw. Jour., Apr. 4, 1993 ("Q. How do I vote if I want to keep Indian casinos going but not expand gambling? A. Neither a yes nor a no vote provides any guarantees."). And, in fact, some expressed concern that the amendment could jeopardize the existing compacts. See, e.g., Amy Rinard, Gaming Question Stays Unanswered, Milw. Sent., Mar. 29, 1993, quoting Glen Miller, then-Chairman of the Menominee Tribe.

33 We note that the Contracts Clause generally applies to contracts to which the State is a party. Russell v. Sebastian, 233 U.S. 195 (1914). When a state is acting, "not in its capacity as a sovereign, but in its proprietary capacity" as a party to a contract, the state "is hound by the same rules as those which it applies to its citizens." Fulton v. First Volunteer Co. of Oconto, 204 Wis. 355, 362, 236 N.W. 120 (1931) (citation omitted). Moreover,

[W]hen the state appears as a suitor in her courts to enforce her rights of property, she comes shorn of her attributes of sovereignty, and as a body politic, capable of contracting, suing, and holding property, is subject to those rules of justice and right which in her sovereign character, she has prescribed for the government of her people.

Id. (citation omitted). See also U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 25 n.23 (1977); Hall v. Wisconsin, 103 U.S. 5, 11 (1880) ("When a State descends from the plane of its sovereignty, and contracts with private persons, it is regarded pro hac vice as a private person itself, and is bound accordingly.") (citation omitted).

In Russell, the United States Supreme Court precluded a state's constitutional amendment from being applied retroactively to a contract between the state and a private company that pre-existed the constitutional amendment. Russell, 233 U.S. at 210. The Court concluded that the constitutional amendment could not be applied retroactively to a contract to which the State was a party in an attempt to "deny the right of expansion to a utility already lawfully doing business in the municipality after the company had expended large sums in preparation for the expansion." Dixie Elec. Membership Corp. v. City of Baton Rouge, 440 F. 2d 819, 822 (5th Cir. 1971) (citing Russell, 233 U.S. 195; noting that retroactive application of the amendment was an attempt to change the rules of the game at the expense of the utility). Contrast, Justice Roggensack's concurrence/dissent, ¶ 305.

34 See Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 437 (1934) ("[E]conomic interests of the state may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.").

35 Justice Roggensack contends that we "choose[] to ignore controlling precedent of the United States Supreme Court." Justice Roggensack's concurrence/dissent, ¶ 287. Justice Roggensack asserts that the Contracts Clause has "never been interpreted by the United States Supreme Court to preclude a state from legislating to protect the public health or morals[.]" Id., ¶' 308 (emphasis in original) (citing Stone v. Mississippi, 101 U.S. 814, 818 (1879)). She reviews decisions by the United States Supreme Court where, she concludes, the court allowed a State's police powers to trump the State's contractual obligations. See id., ¶¶ 309-320. Justice Roggensack's analysis overstates the United States Supreme Court's precedent. The United States Supreme Court has not concluded that a State can never limit its right to exercise its police powers.

In addition, Justice Roggensack asserts that this decision takes away the State's sovereign police power to regulate gambling "within its jurisdiction," Justice Roggensack's concurrence/dissent, ¶ 318. However, Tribes are not within the State's jurisdiction: States do not have jurisdiction over Tribes unless specifically granted such jurisdiction by Congress. Cohen's Handbook of Federal Indian Law § 12.02[5], 865 (2005 ed.). Moreover, without a valid compact, state laws have no regulatory power over gaming on Tribal land, and states have no authority to police Tribal casinos. See Sycuan Band v. Roche, 54 F.3d 535 (9th Cir. 1994); Florida v. Seminole Tribe, 181 F.3d 1237 (11th Cir. 1999).

36 Contrast Justice Roggensack's concurrence/dissent, ¶¶ 309, 318-19 (asserting that the Contract Clause analysis is not applicable to "legislating to protect the public health or morals").

37 Pursuant to IGRA, the parties entered into compacts to form relationships in an effort to balance the interests of the Indian Tribes' desires to become more self-sufficient and the State's desires to regulate Class III games. See, e.g., Bad River/State of Wisconsin Gaming Compact of 1991, § XXXI. A. 1-2.

The Tribes' interests in promoting economic development and self-sufficiency continue. The Tribes' casinos have become "a means to achieve what no state or federal economic development program has been able to achieve for Indian people in 200 years — the return of self-respect and economic self-sufficiency." Judy Zelio, The Fat New Buffalo, State Legislatures, 38-41 (June 1994) (quoting JoAnn Jones, Tribal Chair of the Wisconsin Winnebago Tribe (renamed the Ho Chunk Nation in November 1994)).

The State's interest in regulating Class III gaming likewise persists. The State has continually relied on receipts from Indian gaming in its budgeting process. See, e.g., 1993 Wis. Act 16, 2003 Wis. Act 33.

38 Because our interpretation of the renewal provision contained in the Original Compacts depends upon the parties' intent, Reserve Life Ins. Co. v. La Follette, 108 Wis. 2d 637, 645, 323 N.W. 2d 173 (Ct. App. 1982), the analysis is not one of constitutional interpretation and therefore does not require an examination of the ratification campaign surrounding the voters' passage of the 1993 Amendment. Compare State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 192-94, 204 N.W. 803 (1925).

We nonetheless note that the history surrounding the legislative enactment and voter ratification of the 1993 Amendment demonstrates that, although the intent was to leave the Original Compacts untouched, there was considerably more confusion regarding the application of the 1993 Amendment to the renewal process. The general consensus of the news reports to voters was that the 1993 Amendment may affect renewal of the Original Compacts. Upon determining that the Original Compacts would not be affected, news reporters opined about the potential impact of the 1993 Amendment on renewal of the compacts. For example, a Milwaukee Journal reporter concluded that although any "threat to closing Wisconsin Indian casinos if the amendment passes won't hit for six more years," there was the potential that "when the compacts come up for renewal in 1998 and 1999 that the amendment could be used to shut down the tribal casinos." Schultze, Answers Help Shed Light, supra, at n.7.

The Wisconsin State Journal similarly noted that passage of the Amendment would not affect the compacts for at least six years, but that tribal members feared the State would not renew the compacts. Seely, Gaming Referendum is Sure to Confuse, supra. The Milwaukee Sentinel also cautioned that "ratification of the amendment... could be used to back up the state's case should the next governor decide not to renew," Rinard, Gaming Question Stays Unanswered, supra, ¶ 39.

39 See, e.g., Forest County Potawatomi Compact § XXVI.

40 Bad River Band Compact § XXV(B); Forest County Pota-watomi Compact §XXV(B); Winnebago [Ho-Chunk] Compact § XXVI; Lac Courte Oreilles Compact § XXV(B); Lac du Flam-beau Band Compact § XXV(B); Menominee Compact §XXVI(1)(B); Oneida Compact XXV(B); Red Cliff Compact §XXV(B); Sokaogon Chippewa Compact §XXVB; St. Croix Chippewa Compact §XXV(B); Stockbridge-Munsee Compact § XXV(B).

41 See Von Hoffman v. City of Quincy, 71 U.S. 535, 550 (1866).

42 For example, in the Gaming Compact of 1992 between the Forest County Potawatomi Community of Wisconsin and the State, section XXV provides that in the event of written notice of nonrenewal 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 the procedures in subsec. E. are concluded and a successor compact, if any, is in effect." (emphasis added). Subsection E. allows the parties to enter into negotiations for a successor compact if one of the parties gives written notice of nonrenewal.

43 Id.

44 "Except as provided in this section, the legislature may not authorize gambling in any form." Wis. Const, art. iy § 24. In addition, clause 6 specifically defines the state-operated lottery to exclude casino-style games, including blackjack, poker, roulette, craps, keno, slot machines, and video gaming.

45 We note that the 1993 Amendment may impact successor compacts and other new gaming compacts between the State and the Tribes.

However, under the prohibitory/regulatoiy analysis from Lac du Flambeau, the State may nonetheless be required to negotiate over all Class III games. Lac du Flambeau, 770 F. Supp 487-88. Although this court in Panzer called into question the Lac du Flambeau prohibitory/regulatory distinction, the court did not explicitly conclude that Lac du Flambeau was in error. Panzer, 271 Wis. 2d 295, ¶ 92 n.36. Furthermore, the Seventh Circuit recently affirmed the Lac du Flambeau rationale and reasoned that Wisconsin's lottery signals the State's broader public policy of tolerating gaming. Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. United States, 367 F.3d 650, 664 (7th Cir. 2004). See also Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1031 (2nd Cir. 1990) (concluding that casino-style games were not totally repugnant to the state's public policy, because Connecticut law not only allowed charities to conduct "Las Vegas Nights," but also permitted other forms of gambling, including a state-operated lottery). Because the resolution of the prohibitory/regulatory distinction is a matter of federal law, we decline to further address the issue.

46 See Von Hoffman, 71 U.S. 535, 550 ("[T]he laws which subsist at the time and place of the making of a contract... enter into and form a part of it"); Bronson v. Kinzie, 42 U.S. 311, 321 (1843) (concluding that contracts entered into after the date of a change in law are subject to the new law).

47 Wis. Const, art. IY § 24, cl. 3.

48 Id., cl. 4.

49 Id., cl. 5.

50 Id., cl. 6.

51 This or a similar provision was explicitly included in seven of the eleven Original Compacts. Bad River Compact § XXXI(A)(2); Lac Courte Oreilles Compact § XXXI(A)(2); Menominee Compact § XXXII(A)(2); Red Cliff Compact § XXXI(A)(2); Sokaogon Chippewa Compact § XXXI(A)(2); St. Croix Chippewa Compact §XXXI(A)(2); Stockbridge-Munsee Compact § XXXI(A)(2).

52 The United States Supreme Court has concluded that a "legitimate public purpose" includes broad and general social or economic interests, as opposed to benefiting a narrow special interest. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 412 (1983).

53 Hudson County Water Co. v. McCarter, 209 U.S. 349, 357 (1908) ("One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.").

54 See James M. McGoldrick, Jr., Limits on States 49 (2005).

55 Bad River Compact § XXVI; Forest County Potawatomi Community of Wisconsin Compact §XXVI; Winnebago [Ho-Chunk] Compact § XXVIII; Lac Courte Oreilles Compact § XXVI; Lac du Flambeau Compact § XXVI; Menominee Compact § XXVII; Oneida Compact §XXVT; Red Cliff Compact §XXVT; Sokaogon Chippewa Compact § XXVI; St. Croix Chippewa Compact § XXVI; Stockbridge-Munsee Compact § XXVI.

56 See, generally, Wisconsin Gaming Board, Audit by the 1997-98 Joint Legislative Audit Committee Members, August 1997.

57 See 1993 Wis. Act 16, §§ 153 & 3544(lm)(a) (appropriating $330,800 in 1993-94 and $329,000 in 1994-95 from "[m]oneys received by the state from Indian tribes as reimbursement for state costs of regulation of Indian gaming under [the] Indian gaming compacts ....") (emphasis added).

58 In fiscal year 2003-04, Wisconsin collected $69.6 million from the Tribes. Department of Administration, Division of Gaming, Audit at 6 (June 2005). See also 2005 Wis. Act. 25.

59 Division of Gaming Audit, at 5, supra, at n.58.

60 Panzer, 271 Wis. 2d 295, ¶ 102.

61 In the present case, we reach the question as to the scope of gaming provisions in the Original Compacts because this issue is "of sufficient public interest," and because the parties have explicitly asked the courts to review the scope of gaming issue. See State v. Moran, 2005 WI 115, ¶ 31, 284 Wis. 2d 24, 700 N.W.2d 884 ("[W]hen an issue involves a question of law, has been briefed by the opposing parties, and is of sufficient public interest to merit a decision, this court has discretion to address the issue."). In its court of appeals brief, Dairyland asserted that the Governor had no authority to amend or extend compacts authorizing casino gambling in 1998 or 2003. The Governor argued that the original compacts, including the scope of gaming provisions, continued until they were terminated.

We note that the Class III games added in 2003 include: roulette, big wheel and other wheel games, craps, poker and similar non-house banked card games, games played at blackjack- style tables, such as Let-It-Ride, Casino Stud, and Casino War, electronic keno, pari-mutuel wagering on live simulcast, horse, harness and dog racing events, including participation in interstate betting pools, all other banking, percentage and pari-mutuel card games, all other banking and non-banking dice games, Wheel of Fortune, Baccarat-chemin de fer, all finite lottery and lottery games, any other game whether played as a table game or played on an electronic or mechanical device, including devices that operate like slot machines, which consist of the elements of prize, chance and consideration, Caribbean Stud Poker, Let-It-Ride, and Pai-Gow Poker.

In its briefs to this court, Dairyland asserted that the amendments in 2003 are invalid. The Governor advocated that this Court overrule the portion of Panzer dealing with the scope of permissible Tribal gaming in Wisconsin. In addition, at oral argument Dairyland asserted that the issue and focus of this case was "how can a governor in the year 2003 and also in 1998, how can that governor authorize casino gaming for anybody when the casino gambling had been expressly prohibited by Article Section 24 of the Wisconsin Constitution when it was amended in 1993?" When asked to clarify which compact extensions Dairy-land wanted addressed, Dairyland stated: "The one in 1998. I think more importantly, the one in 2003." Later, Dairyland also asserted that the 1998 amendments were not valid, but that they were not as important as the 2003 amendments.

Justice Prosser similarly asserts that the 1998-99 amendments were not substantial enough to be unconstitutional, and advocates for the conclusion that the 2003 extensions are unlawful because the amendments went too far, observing that the games that were added in 2003 are explicitly listed in the constitution as prohibited forms of gaming under Article Ify section 24, clauses 3 to 6. See Justice Prosser's concurrence/ dissent, ¶ 239.

Justice Roggensack asserts that "[t]he majority opinion concludes that the games added to the compacts in 2003 do not violate Wisconsin law." Justice Roggensack's concurrence/dissent, ¶ 285. That is incorrect. We do not reach the 2003 gaming compacts.

While we recognize these arguments, we are simply ruling on the scope of gaming provisions contracted for in the Original Compacts.

62 Bad River Compact § IV(B); Forest County Potawatomi Compact § IV(B); Winnebago [Ho-Chunk] Compact § IV(C); Lac Courte Oreilles Compact § IV(B); Lac du Flambeau Compact § IV(B); Menominee Compact § IV(B); Oneida Tribe Compact § IV(B); Red Cliff Compact § IV(B); Sokaogon Chippewa Compact § IV(B); St. Croix Chippewa Compact § IV(B); Stockbridge-Munsee Compact § IV(B) (emphasis added).

63 Bad River Compact § XXX; Forest County Potawatomi Community of Wisconsin Compact § XXX; Winnebago [Ho-Chunk] Compact § XXXII; Lac Courte Oreilles Compact § XXX; Lac du Flambeau Compact § XXX; Menominee Compact § XXXI; Oneida Compact § XXX; Red Cliff Compact § XXX; Sokaogon Chippewa Compact § XXX; St. Croix Chippewa Compact § XXX; Stockbridge-Munsee Compact § XXX.

64 Justice Roggensack asserts that the majority has concluded that the "compacts contain an obligation to amend the compacts to permit the addition of new types of gambling!.]" Justice Roggensack's concurrence/dissent, ¶ 323. This is a misstatement of the holding of this case. We conclude that the compacts contain an obligation for the parties to honor modifications to the scope of gaming should the parties agree to amend the compacts in that regard.

We also note that should the parties agree to amend the scope of gaming and one party violates this agreement, the other party may seek contractual remedies. See, e.g., Bad River Compact §XXII ("Dispute Resolution"). Contrast Justice Roggensack's concurrence/dissent, ¶ 328.

65 The offending provision in the contract at issue in Dunlop stated:

[The parties] shall at a future date mutually agree and come to a common understanding as to the use of their respective lands surrounding the lake which shall be formed on their lands and as to the type and structure of any buildings which shall be erected on their respective lands surrounding said lake.

Dunlop v. Laitsch, 16 Wis. 2d 36, 39, 113 N.W.2d 551 (1962).

66 In Dunlop, this court reasoned:

If the parties, particularly Dunlop, had not relied on Laitsch's agreement to agree (Agreement "B") there would have been no Agreement "A" and no dam. We think that the failure to agree goes to the heart of Agreement "A" and when Agreement "B“ falls because unenforceable and void, "A" goes with it because of the absence of a meeting of the minds as to an essential term.

Dunlop, 16 Wis. 2d at 43a.

67 As noted above, Panzer questioned the prohibitory/ regulatory distinction from Lac du Flambeau. Panzer, 271 Wis. 2d 295, ¶ 92 n.36. However, this analysis focuses on the intent of the parties during the compact negotiations, and at the time of the compact negotiations, Lae du Flambeau was controlling. See Justice Prosser's concurrence/dissent, ¶ 191 n.25 (noting that Lac du Flambeau binds the parties to the particular action in which it was issued).

In his concurrence/dissent, Justice Prosser similarly questions the prohibitory/regulatory distinction as applied in Lac du Flambeau. Justice Prosser examines the history of the Wisconsin Constitution, and the history of IGRA, in an attempt to demonstrate that Lac du Flambeau was incorrectly decided. Id., ¶¶ 139-207. His analysis is flawed. Justice Prosser asserts that the term "lottery" was intended to be interpreted narrowly in the original Wisconsin Constitution, and therefore the constitutional amendment to allow a state lottery should not have led the Lac du Flambeau court to conclude that Wisconsin was a regulatory state. Id., ¶¶ 191-205. However, for over six decades, this court, the Wisconsin Attorney General, and the Wisconsin Legislature have consistently employed a broad interpretation of the term "lottery," to include all games of prize or chance. See State ex rel. Trompe v. Multerer, 234 Wis. 50, 289 N.W. 600 (1940); Kayden Industries, Inc. v. Murphy, 34 Wis. 2d 718, 150 N.W.2d 447 (1967). See also Justice Prosser's concurrence/dissent, ¶¶ 170-71. Therefore, the Lac du Flam-beau court merely followed the Wisconsin courts, Attorney General, and legislature in concluding that the State was a regulatory state because it authorized a state-operated lottery.

In addition, Justice Prosser's analysis of IGRA is overstated. Justice Prosser concludes that Congress clearly intended to grant states the authority to limit Tribal gaming to the same forms of gaming activity conducted within the state. Justice Prosser's concurrence/dissent, ¶¶ 196-205 (emphasis added). Yet, Congressional intent is not so clear. As Justice Prosser correctly notes, some Senators stated that they intended IGRA to prohibit Tribal gaming from exceeding the games allowed for non-Indians in that state. Id., ¶¶ 196-98. However, Senator Evans explained that IGRA was intended to transfer limited state jurisdiction over Tribes. IGRA Hearing on S. 555, 100th Cong. (1988). Senator Inouye clearly emphasized the importance of preserving Tribal sovereignty and that any extension of state jurisdiction must be limited:

Indian tribes are sovereign governments and exercise rights of self-government over their lands and members. This bill does not seek to invade or diminish that sovereignty ... the committee was fully cognizant of the strenuous objections that would be raised by tribes to any outright transfer of state jurisdiction, even for the limited purposes of regulating class III gaming.

Id. Justice Prosser's conclusion, therefore, is not the only reasonable conclusion that can be drawn from the legislative debates regarding Congress's intent in passing IGRA.

Moreover, if we were to conclude that Lac du Flambeau was incorrectly decided, as Justice Prosser advocates, the State and Tribes would have illegally authorized blackjack, slot machines, and video gaming machines in the Original Compacts, and the Original Compacts and 1998-99 extensions would be in violation of the Wisconsin Constitution.

68 The Wisconsin Constitution, as amended, reads, in relevant part, "Except as provided in this section, the legislature may not authorize gambling in any form." Wis. Const, art. W § 24. Clauses 3 through 6 list exceptions to the broad prohibition, including: 1) bingo games operated by charitable and religious organizations; 2) raffle games operated by charitable and religious organizations; 3) pari-mutuel on-track betting; and 4) the state-operated lottery. Id. Furthermore, as amended, Clause 6 specifically defines the state-operated lottery to ex-elude casino-style games, including blackjack, poker, roulette, craps, keno, slot machines, and video gaming. Id. (emphasis added).

69 See Justice Prosser's concurrence/dissent, ¶¶ 240-45; Justice Roggensack's concurrence/dissent, ¶ 288 (concluding that although the 1993 Amendment has no effect on the types of gaming compacted prior to 1993 or the 1998-99 compact extensions, the 1993 Amendment precludes new types of games that were not included in the Original Compacts or the 1998-99 extensions).

70 See Justice Prosser's coneurrence/dissent, ¶¶ 106, 239; Justice Roggensack's concurrence/dissent, ¶ 288.

71 Each of the Compacts states: "To the extent that State law or Tribal ordinances, or any amendments thereto, are inconsistent with any provision of this Compact, this Compact shall control."

Bad River Compact § XXVI; Forest County Potawatomi Community of Wisconsin Compact § XXVI; Winnebago [Ho-Chunk] Compact § XXVII; Lac Courte Oreilles Compact § XXVI; Lac du Flambeau Compact § XXVI; Menominee Compact § XXVII; Oneida Compact § XXVI; Red Cliff Compact § XXVI; Sokaogon Chippewa Compact § XXVI; -St. Croix Chippewa Compact § XXVI; Stockbridge-Munsee Compact § XXVI.

72 See also Reserve Life, 108 Wis. 2d at 645-47; Von Hoffman, 71 U.S. at 550 ("[T]he laws which subsist at the time and place of the making of a contract... enter into and form a part of it").

73 Justice Prosser asserts that this decision opens the door to an explosion of gaming. Concurrence/dissent, ¶ 109. We share Justice Prosser's concern regarding the potential for the expansion of gaming in this State. However, it is up to the Governor and the legislature to determine the amount of gaming as they see fit. Gaming can be expanded only to the extent that the State and Tribes negotiate for additional Class III games. Therefore, the "explosion" will only expand as far as the State and Tribes permit. This court cannot impose its judgment regarding what Class III games we believe the State should allow. This would place the court in the activist position of imposing our policy judgments over those of the Governor, the legislature and the Wisconsin citizens. We refuse to do so. This determination is for the State and the Tribes.

74 See, e.g., Panzer, 271 Wis. 2d 295, ¶¶ 93, 96.

75 See, e.g., Hilton v. DNR, 2006 WI 84, 293 Wis. 2d 1, 717 N.W.2d 166.

When the Wisconsin Supreme Court elects to hear only ten percent of the cases presented to it for review, the public expects and deserves that the court "take cases to decide the substantive issues presented and provide meaningful analysis and guidance on important issues, not to avoid deciding them by judicially created avoidance doctrines.'¹

Hilton, 293 Wis. 2d 1, ¶ 54 (Prosser, J. concurrence) (quoting Patience D. Roggensack, Elected to' Decide: Is the Decision-Avoidance Doctrine of Great Weight Deference Appropriate in this Court of Last Resort?, 89 Marq. L.Rev. 541, 544 (2006)).

We also note that the petitioners in Panzer initially conceded that the Contract Clause precluded invalidating a preexisting contract:

Petitioners do not claim that the 1993 Constitutional Amendment invalidated any compact in place at that time. This is not an issue in this case in part because Wisconsin, under the Impairment of Contracts Clause of the U.S. Constitution Art. I, § 10 cl. 1, lacks authority to invalidate an existing agreement.

Page 31 of Brief-in-chief of Petitioners Mary E. Panzer, John G. Gard and Joint Committee on Legislative Organization, filed in Panzer, 271 Wis. 2d 295 (dated October 22, 2003).

76 Compare Justice Roggensack's concurrence/dissent, ¶ 294-298.

⁷⁷

1 For an extensive discussion of Panzer v. Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, see James J. Wawrzyn, Panzer v. Doyle: Wisconsin Constitutional Law Deals the Governor A New Hand, 89 Marq. L.Rev. 221 (2005).