2006 WI 107

For the plaintiff-appellant there were briefs by Stephen L. Morgan and Murphy Desmond, S.C., Madison, and oral argument by Stephen L. Morgan.

For the defendants-respondents the cause was argued by Thomas C. Bellavia, Maura FJ Whelan, John S. Greene, Charles D. Hoornstra, assistant attorneys general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Douglas B.L. Endreson, William R. Perry and Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, D.C., and Howard Bichler and St. Croix Law Office, Webster, on behalf of St. Croix Chippewa Indians of Wisconsin; Kevin L. Osterbauer and Legal Department-Chief Blackbird Center, Odanah, on behalf of Bad River Band of the Lake Superior Tribe of Chippewa Indians; Kris M. Goodwill and Lac Courte Oreilles Legal Department, Hayward, on behalf of Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Jeffrey A. Crawford, Milwaukee, and Eric N. Dahlstrom and Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Frye, LLP, Tempe, AZ, on behalf of Forest County Potawatomi Community; Andrew S. Caulum and Caulum Law Office, S.C., Madison, on behalf of Sokaogon Chippewa Community (Mole Lake Band of the Lake Superior Chippewa Indians), and there was oral argument by Douglas B.L. Endreson.

An amicus curiae brief was filed by Tori L. Kluess, Jodi L. Arndt, and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on behalf of the Green Bay Area Chamber of Commerce.

An amicus curiae brief was filed by Michael Murphy and Ho-Chunk Nation Department of Justice, Black River Falls, and Lester J. Marston and Rapport and Marston, Ukiah, CA, on behalf of the Ho-Chunk Nation.

An amicus curiae brief was filed by Grant Langley, Patrick McDonnell, and William J. Domina, Milwaukee, on behalf of the City of Milwaukee and the County of Milwaukee.

An amicus curiae brief was filed by Raymond P. Taffora, Roisin H. Bell, and Michael Best & Friedrich LLP, Madison, on behalf of the Metropolitan Milwaukee Association of Commerce and Associated General Contractors-Greater Milwaukee.

An amicus curiae brief was filed by E. Michael McCann, District Attorney, Milwaukee.

2006 WI 107

notice

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

No. 2003AP421

APPEAL from an order of the Circuit Court for Dane County, Richard J. Callaway, Judge. Affirmed.

¶ 1 LOUIS B. BUTLER, JR., J. 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 capacities[1] (collectively referred to as " the Governor" ), concluding that the 1993 amendment to Article IV, 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 IV, 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 IV, 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 Wisconsin[8] 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. § 14.035,[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 III[17] 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 IV, 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).

III

¶ 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).

1

¶ 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. IV, § 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 IV, § 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]

2

¶ 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, 1991 AJR 1, requesting that the resolution be drafted to mirror an earlier legislative proposal[29] 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.

¶ 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 IV, 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, " Yes" 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 " Yes" . . . 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.

3

¶ 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(1m)(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.

4

¶ 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.

¶ 50 We next examine whether the Governor has the authority to renew the Original Compacts. Dairyland 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.

1

¶ 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. Schlitz 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.

2

¶ 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. IV, sec. 24[44] 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, ¶ 148. 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 gaming in 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 reliance 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. IV, 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 Menomonee 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 be 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 Dairyland 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 IV, 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.

¶ 96 N. PATRICK CROOKS, J. (concurring). While I join the majority, I write separately to reaffirm the conclusions reached in our dissent in Panzer v. Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666 (Abrahamson, C.J., Bradley, J. and Crooks, J. dissenting), as well as my position in Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI 34, 270 Wis. 2d 267, 677 N.W.2d 275.

¶ 97 Our conclusions in Panzer are equally valid with regard to the case before us today. First, " [w]hile the amendment to Article IV, § 24 did change Wisconsin's law with respect to gaming, it did not affect the compact before us." Panzer, 271 Wis. 2d 295, ¶ 206 (Abrahamson, C.J., Bradley, J. and Crooks, J. dissenting). In fact, the legislative history makes clear that Article IV, Section 24 of the Wisconsin Constitution was neither intended to apply, nor had the effect of applying, to then existing Indian gaming compacts. See majority op., ¶ ¶ 36, 44, 49, 66.

¶ 98 Second, as we determined in our dissent in Panzer, " the Governor properly exercised his power pursuant to Wis. Stat. § 14.035" both in entering into the Original Compacts, as well as negotiating the 1998 and 2003 amendments. Panzer, 271 Wis. 2d 295, ¶ 124. As we explained in that case " as long as a compact does not contravene a statute or constitutional provision, the governor may enter into it under Wis. Stat. § 14.035, embracing those conditions and provisions the governor deems will best promote the interests of the government." Id., ¶ 153.

¶ 99 Third, in Panzer we concluded that an application of the 1993 constitutional amendment to the compacts would " substantially impair the contractual relationship between the State and the Tribe and violate the impairment of contracts clause." Id., ¶ 256. The clear language of the compacts demonstrated that the parties intended to be bound by the laws of Wisconsin as they existed in 1992. Id., ¶ 194. " Regardless of future laws or amendments to preexisting laws, the parties agreed to let the terms of the compact control their relationship." Id.

¶ 100 " At the time the parties entered into the compact, all Class III games could be negotiated for and were permitted under the compact." Id., ¶ 195. As our Panzer dissent explained, because the state was permitted to negotiate with respect to Class III games, " any attempt to read Article IV, § 24 as altering the types of games that may be negotiated for under the compact would impair the compact to which the parties agreed, and would, therefore, run afoul of the United States and Wisconsin constitutional clauses against impairment of contract." Id., ¶ 209.

¶ 101 Our reasoning and conclusions in Panzer are consistent with the majority's holding in the case at bar. Ultimately we conclude, as we did in our Panzer dissent, that Article IV, Section 24 of the Wisconsin Constitution does not apply to then existing Indian gaming compacts, that the Governor properly exercised his authority to enter into the Original Compacts, and negotiate the amendments in both 1998 and 2003, and that any application of the 1993 constitutional amendment to the compacts violates both the state and federal impairment of contracts clause. Id., ¶ ¶ 124, 256.

¶ 102 For the aforementioned reasons, I join the majority opinion, reaffirm our conclusions in our Panzer dissent, and respectfully concur.

¶ 103 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurrence.

¶ 104 DAVID T. PROSSER, J. (concurring in part, dissenting in part). In Panzer v. Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, this court was asked to review four amendments to the 1992 gaming compact between the State of Wisconsin and the Forest County Potawatomi Community. The court concluded that three of the amendments were invalid. At the same time, the court upheld the original gaming compact and, by implication, 10 similar gaming compacts; and it implied that a 1993 constitutional amendment restricting gambling in Wisconsin did not impair these compacts or bar their extension.[78] In this case, petitioner seeks a definitive interpretation of the 1993 constitutional amendment, asking explicitly whether the Governor has authority to amend or extend Indian gaming compacts to allow forms of gambling that are prohibited under Wisconsin law.

¶ 105 My conclusions are as follows.

¶ 106 First, the Wisconsin state government, including Wisconsin governors, have not violated and will not violate Article IV, Section 24 of the Wisconsin Constitution by extending the Original Compacts, so that Wisconsin Indian tribes may engage in the same forms of gaming activity that they negotiated in their original compacts. Consequently, Wisconsin governors are not obligated to nonrenew these gaming compacts. In this regard, the majority opinion is correct.

¶ 107 Second, the Wisconsin state government, including Wisconsin governors, may agree to amendments of gaming compacts to add gaming activities that are permitted by state law " for any purpose by any person, organization, or entity," 25 U.S.C. § 2710(d)(1)(B), but may not add gaming activities that are prohibited by state law for all purposes to all persons, organizations, and entities. Wisconsin governors have no authority to approve new gaming activities that are prohibited by Article IV, Section 24 of the Wisconsin Constitution or state criminal law.

¶ 108 Third, the majority's determination that the 1993 amendment to Article IV, Section 24 had no effect whatever on the 11 original Indian gaming compacts is mistaken; and its holding that Wisconsin governors have power, by virtue of the compacts, to amend the compacts to add any gaming activities not prohibited by federal law, contradicts both the Wisconsin Constitution and federal law.

¶ 109 The majority opinion is far-reaching. It involves much more than overruling portions of the Panzer decision and giving Wisconsin tribes the right to play poker, roulette, craps, and keno at their casinos in Indian country. The opinion could lead to an explosion of new gaming activities.

¶ 110 The majority concludes that a governor's source of authority to negotiate new gaming amendments is not Wis. Stat. § 14.035 but rather the provisions in existing gaming compacts buttressed by the impairment of contracts clauses of the United States and Wisconsin Constitutions. Under this analysis, a governor's authority is not limited by the Wisconsin Constitution or state criminal law. This determination will permit Wisconsin governors to negotiate and approve such major gambling expansions as off-track pari-mutuel betting, betting on sporting events, jai alai, and all banking card games, which are barred by the Wisconsin Constitution but not prohibited by federal law.

¶ 111 If the majority's determination that the Wisconsin Constitution does not check a governor's power to negotiate gaming compacts is correct, then the majority has overruled, sub silentio, Panzer insofar as it declared invalid the 2003 duration amendment and the 2003 amendment waiving sovereign immunity. Three of the four members of the majority supported these amendments in their Panzer dissent.

¶ 112 This partial dissent requires a full explanation. In offering this explanation, I believe it is essential to understand the history of Article IV, Section 24 and events leading up to this litigation. As sociologist Robert Nisbet once observed, " We cannot know where we are, much less where we are going, until we know where we have been."

¶ 113 To assist the reader, my dissent is organized under the following headings:

I. Methodology for Interpreting the Wisconsin Constitution

II. Interpreting Article IV, Section 24 as Created in the 1848 Constitution

III. Interpreting Article IV, Section 24 as Amended in 1987

IV. The United States District Court's Decision in the Lac du Flambeau Case

V. The Legislative Response to the Lac du Flambeau Decision

VI. Interpreting Article IV, Section 24 as Amended in 1993

VII. The Effect of Article IV, Section 24 on Indian Gaming

I. METHODOLOGY FOR INTERPRETING THE WISCONSIN CONSTITUTION

¶ 114 This court interprets provisions of the Wisconsin Constitution de novo. Thompson v. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d 123 (1996) (citing Polk County v. State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389 (1994)). Our methodology in interpreting a constitutional provision is not identical to our methodology in interpreting a statute. In interpreting a statute, the court focuses on " statutory meaning" as opposed to " legislative intent." See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ ¶ 36-52, 271 Wis. 2d 633, 681 N.W.2d 110. In doing so, the court relies heavily on " intrinsic" sources such as the words of the statute, including dictionary definitions, plus statutory context, scope, and purpose. As a rule, Wisconsin courts do not consult " extrinsic" sources of statutory interpretation unless the statute is ambiguous, id., ¶ 50, although extrinsic sources may be used to confirm or verify plain statutory meaning. Id., ¶ 51. The plain meaning rule of statutory interpretation prevents courts from tapping legislative history to show that an unambiguous statute is ambiguous. Id.

¶ 115 Our methodology in interpreting a constitutional provision envisions more intense review of extrinsic sources than our methodology in statutory interpretation. The court has explained that:

The purpose of construction of a constitutional [provision] is to give effect to the intent of the framers and the people who adopted it; and it is a rule of construction applicable to all constitutions that they are to be construed so as to promote the objects for which they were framed and adopted.

State v. Cole, 2003 WI 112, ¶ 10, 264 Wis. 2d 520, 665 N.W.2d 328 (quoting Kayden Indus., Inc. v. Murphy, 34 Wis. 2d 718, 729-30, 150 N.W.2d 447 (1967)).

¶ 116 The reasons we employ a different methodology for constitutional interpretation are evident. Constitutional provisions do not become law until they are approved by the people. Voters do not have the same access to the " words" of a provision as the legislators who framed those words; and most voters are not familiar with the debates in the legislature. As a result, voters necessarily consider second-hand explanations and discussion at the time of ratification. In addition, the meaning of words may evolve over time, obscuring the original meaning or purpose of a provision. The original meaning of a provision might be lost if courts could not resort to extrinsic sources. Finally, interpreting a constitutional provision is likely to have a more lasting effect than the interpretation of a statute, inasmuch as statutory language can be more easily changed than constitutional language. Thus, it is vital for court decisions to capture accurately the essence of a constitutional provision.

¶ 117 Against this background, our traditional methodology[79] on constitutional interpretation may be restated as follows:

1. Courts should give priority to the plain meaning of the words of a constitutional provision in the context used. Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976). The plain meaning of the words is best discerned by understanding their obvious and ordinary meaning at the time the provision was adopted, taking into account other (especially contemporary) provisions of the constitution. See State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04, 216 N.W. 509 (1927).

2. Courts may view the " historical analysis of the constitutional debates and of what practices were in existence in 1848 which the court may reasonably presume were also known to the framers of the 1848 constitution." Id. This principle permits courts to consider the debates surrounding amendments to the constitution and the circumstances at the time these amendments were adopted. We have said that courts may examine " the history of the times," meaning not only the legislative history of a provision (including word changes in the drafts of amendments) but also " the state of society at the time," with special emphasis on the " practices and usages" then in existence, so as to identify the concerns the provision sought to address. See Bd. of Educ. v. Sinclair, 65 Wis. 2d 179, 184, 222 N.W.2d 143 (1974) (quoting State ex rel. Zimmerman v. Dammann, 201 Wis. 84, 89, 228 N.W. 593 (1930)). These concerns are often illuminated by contemporary debates and explanations of the provision both inside and outside legislative chambers.

3. Courts may scrutinize the earliest interpretations of the provision by the legislature as manifested in the first laws passed following adoption of the provision. Buse, 74 Wis. 2d at 568 (citing Payne v. Racine, 217 Wis. 550, 259 N.W. 437 (1935)). Legislation that implements a constitutional provision is thought to be a fair gauge of contemporary interpretation and is entitled to great deference.

¶ 118 The methodology stated here is the methodology I will employ in interpreting Article IV, Section 24 as it was created in 1848, as it was amended in 1987, and as it was amended again in 1993.

II. INTERPRETING ARTICLE IV, SECTION 24 AS CREATED

IN THE 1848 CONSTITUTION

¶ 119 Article IV, Section 24 originated in the Wisconsin Constitution of 1848.[80] The original provision was not intended to cover all forms of gambling. This conclusion is based on the language of the provision, the purpose of the provision, and the historical context of the provision, including legislative activity before and after the provision was adopted.

¶ 120 First, we focus on the words. Noah Webster's An American Dictionary of the English Language (1828) defined " lottery" as follows:

1. A scheme for the distribution of prizes by chance, or the distribution itself. Lotteries are often authorized by law, but many good men deem them immoral in principle, and almost all men concur in the opinion that their effect are pernicious.

2. Allotment.

Noah Webster, An American Dictionary of the English Language (1828) (unpaginated).[81]

¶ 121 " A scheme for the distribution of prizes by chance" does not implicate all schemes or all games that involve prize, chance, and consideration. For instance, in Webster's 1853 dictionary, Noah Webster, An American Dictionary of the English Language (1853), Webster defined " gambling" and other terms:

Gamble: " To play or game for money or other stake." Webster, supra 492.[82]

Gambling: " Gaming for money." Webster, supra 492.[83]

Gaming: " The act or art of playing any game, in a contest for a victory, or for a prize or stake."

2. " The practice of using cards, dice, billiards, and the like, according to certain rules, for winning money, & c." Webster, supra 493.[84]

Roulette: " A game of chance, in which a small ball is made to move round rapidly on a circle divided off into red or black spaces, and as it stops on the one or the other, the player wins or loses." Webster, supra 965.

Webster did not use the word " lottery" in these definitions. He did not use " lottery" and " gaming" interchangeably. In 1848, as now, people did not associate dice and billiards with a lottery. Moreover, in the mid-1800s, other forms of gaming were not " often authorized by law," although some gambling was not prohibited. Thus, Douglas Farnsley was correct when he wrote, " In common usage a lottery is synonymous with a raffle, and in Wisconsin law the term is usually given this meaning." Douglas Charles Ellerbe Farnsley, Gambling and the Law: The Wisconsin Experience, 1848-1980, 1980 Wis. L. Rev. 811, 812.

¶ 122 Second, we examine the historical context. Most states adopted anti-lottery amendments or legislation because of notorious scandals involving lotteries, including the Grand National Lottery authorized by Congress. Panzer, 271 Wis. 2d 295, ¶ 7.[85] Farnsley explains that:

Following the Revolutionary War, most states had relied heavily on lotteries as a means of financing public works and supporting institutions such as orphanages and hospitals. These states had also authorized various philanthropic organizations such as churches and universities to conduct lotteries. States and organizations had usually relied upon management companies to conduct the lotteries. The companies would then turn over a percentage of the profits to the sponsor. Thus, while the lotteries may have been fundraising schemes for the sponsor, they were commercial gambling in relation to the management company. In 1833, Pennsylvania, Massachusetts, and New York had abolished lotteries due in large measure to fraudulent practices by lottery management companies. Many other states followed their lead. Prior to the War Between the States all but three states had barred lotteries. The drafters of Wisconsin's Constitution acted within this historical context in banning lotteries.

Farnsley, supra, at 854 (emphasis added).

¶ 123 Farnsley's observation about " historical context" explains why the " lottery" provision is contained within Article IV. Article IV is the constitutional article on " Legislative" power. It is a fundamental precept of state constitutional law that state legislative power is plenary in nature. Cutts v. Dep't of Pub. Welfare, 1 Wis. 2d 408, 416, 84 N.W.2d 102 (1957). The Wisconsin Constitution does not grant legislative power;[86] it limits legislative power or directs how legislative power should be exercised. In 1848 Article IV, Section 24 (" The legislature shall not authorize any lottery, or grant any divorce" ) contained two specific limitations on legislative power, not moral pronouncements on gaming and divorce.[87]

¶ 124 The New York Constitution of 1846 often served as a model for the Wisconsin drafters.[88] Article I, Section 10 of that constitution provided that, " No law shall be passed abridging the right of the people peaceably to assemble and petition the government . . . nor shall any divorce be granted, otherwise than by due judicial proceedings; nor shall any lottery hereafter be authorized or any sale of lottery tickets allowed within this state." The 1846 New York Constitution linked the legislative proscription on authorizing " any lottery" to the legislative proscription on granting " any divorce," [89] as did the 1848 Wisconsin Constitution.

¶ 125 What is especially significant about this probable source of Article IV, Section 24 is that the New York lottery provision was construed in Reilly v. Gray, 28 N.Y.S. 811 (1894), not to apply to betting on horse races. The court explained the purpose of the New York provision:

For many years prior to 1821 there had existed laws for the prohibition of all lotteries other than such as should be authorized by the Legislature. The Legislature, however, had by special acts authorized them to such an extent as to call for a constitutional prohibition. Evidently it was not deemed wise to trust the Legislature on the subject.

. . . It seems . . . very clear that it was not the intention of the framers of the Constitution . . . in the use of the word " lottery," to include in it the subject of betting as then prohibited by statute. They were distinct subjects upon the statute book and in the public mind, and, if the design had been to cover both, they would have been named.

Id. at 815 (citation omitted).

¶ 126 There is no record of discussion at Wisconsin's Constitutional Convention about the " lottery" language. The absence of controversy suggests that the framers were borrowing old concepts from New York and other states rather than originating new ones.[90]

¶ 127 Farnsley's use of the word " authorize" in his historical explanation matches the constitutional language in Article IV, Section 24. Farnsley, supra, at 854. This word implies that the Wisconsin framers had a specific concern about official legislative authorization of lotteries, as opposed to a broad concern about all gambling. The legislature had ample police power to regulate or prohibit all gambling. Thus, the purpose of the constitutional provision was to deny our legislature the authority to give its imprimatur to lotteries as a source of government or private revenue because so many lotteries had proven to be unreliable or corrupt. Id.

¶ 128 Third, building on the second point, the language in contemporaneous state constitutions almost always included language on lottery " tickets," indicating mass participation as opposed to participation by a small number of people. For instance, Article 12, Section 6 of the 1835 Michigan Constitution provided: " The legislature shall not authorize any lottery nor permit the sale of lottery tickets." Article IV, Section 29 of the 1846 Iowa Constitution stated: " No lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed." The 1849 California Constitution provided in Article IV, Section 19 that " No lottery shall be allowed by this State, nor shall the sale of lottery tickets be allowed." The 1859 Kansas Constitution (Article 15, Section 3) declared that " Lotteries and the sale of lottery tickets are forever prohibited." [91]

¶ 129 In 1870 a revised Illinois Constitution provided in Article IV, Section 27: " The General Assembly shall have no power to authorize lotteries or gift enterprises, for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this State[.]" (Emphasis added.) The Illinois Constitution shows that more than 20 years after the Wisconsin Constitution was adopted, our neighbors to the south saw lotteries as a specific form of gambling that utilized tickets.

¶ 130 The Louisiana Constitution of 1921 is also instructive. Article XIX, Section 8 provided:

Gambling is a vice and the Legislature shall pass laws to suppress it.

Gambling in futures on agricultural products or articles of necessity, where the intention of the parties is not to make an honest and bona fide delivery, is declared to be against public policy; and the Legislature shall pass laws to suppress it.

Lotteries and the sale of lottery tickets are prohibited in this State.

¶ 131 The 1921 Louisiana Constitution drew an explicit distinction between lotteries and other forms of gambling. This distinction is underscored by the self-executing provision on lotteries (but not other gambling) and the reference to " lottery tickets." The reference to tickets was a nearly uniform pattern in the states, especially at the time the Wisconsin Constitution was adopted. The fact that the Wisconsin Constitution did not refer to " lottery tickets" in 1848 should not be interpreted as a departure from that pattern, at least without some evidence to support such an interpretation.

¶ 132 Finally, the experience outside Wisconsin is consistent with the experience in Wisconsin. Pre-statehood territorial legislation governing gaming tables and gambling devices did not address lotteries; post-statehood legislation distinguished between lotteries and other forms of gaming.[92] Panzer, 271 Wis. 2d 295, ¶ 7.[93]

¶ 133 In his law review article, Farnsley notes that Wis. Stat. ch. 138 § 1 (1849) " uses the term 'lottery' in its limited sense." Farnsley, supra at 855 n.225. He quotes Section 1 as follows:

Every person who shall set up or promote any lottery for money . . . and every person who shall aid either by printing or writing, or shall in any way be concerned in setting up, managing or drawing any such lottery, or who shall in any house, shop or building owned or occupied by him . . . knowingly permit the setting up, managing or drawing any such lottery, or the sale of any lottery ticket, or share of a ticket . . . .

In other words, the first law passed by the legislature following the adoption of the constitution spoke of lotteries and " lottery tickets," and of a " drawing," all signifying a limited scope to the term. Moreover, the Index to the 1849 statutes clearly distinguishes lotteries from betting and gaming. The two subjects appeared under different headings in the index and on different pages in the statutes.

¶ 134 There is no reference to betting on horse races in the 1849 statutes. According to Farnsley, the legislature first acted in 1878 to halt gambling at racetracks (Wis. Stat. § 1779 (1878)), and in 1885 to halt gambling at local fairs (Wis. Stat. § 1463 (1889)).[94] Farnsley, supra, at 857. Thus, Richard Current was able to write: " By 1857 horse racing and betting on the horses were well established, at least in some parts of the state." Richard N. Current, II The History of Wisconsin 128 (1976). Betting on horses at racetracks and local fairs would not have been possible if the public had understood Article IV, Section 24 as a ban on all gambling.

¶ 135 The distinction between lotteries and the broader terms " gaming" and " gambling" is also found in early court decisions. For instance, in State v. Lewis, 12 Wis. 483 [*434] (1860), the defendant was indicted " for permitting gaming with cards for gain upon his premises." Id. at 483 [*434] (emphasis added). The decision discusses cards as gaming devices and it mentions euchre, poker, faro bank, and roulette but never uses the word " lottery."

¶ 136 The first case to use the word " lottery" was Lemon v. Grosskopf, 22 Wis. 427, 99 Am. Dec. 58 (1868).[95] It involved a dispute between the owner of a " lottery scheme in the city of Chicago" and his agent in Milwaukee. The " defendant was employed by the plaintiff to sell [ ] lottery tickets, receive and retain the money for them until he became satisfied that the drawing of the prizes in the scheme was fairly conducted, and then account to the plaintiff." Id. at 431 (emphasis added). The court's decision makes no reference to " gaming" or " gambling."

¶ 137 Finally, in a third case, we see this court use the words " lottery" and " gaming" in the same opinion. Sperry & Hutchinson Co. v. Weigle, State Dairy & Food Comm'r, 166 Wis. 613, 166 N.W. 54 (1918) (" Trading Stamp cases" ). The issue presented was the constitutionality of state legislation prohibiting the use of trading stamps except for stamps having cash value. The court upheld the legislation as a proper exercise of the police power. It did not cite Article IV, Section 24. Rather, it cited Rast v. Van Deman & Lewis Co., 240 U.S. 342 (1916), and said:

[T]he court held that the scheme and practice of issuing such trading stamps in connection with the conduct of a lawful business . . . and the redemption thereof in articles of merchandise or premiums in addition to the articles sold is attended with evil and pernicious consequences, which have a tendency to affect the general welfare similar in effect to the evils attending a " lottery" and " gaming."

Sperry & Hutchinson, 166 Wis. at 622-23 (emphasis added). The court also approvingly quoted Rast: " This may not be called in an exact sense a 'lottery,' may not be called 'gaming'; it may, however, be considered as having the seduction and evil of such . . . ." Sperry & Hutchinson, 166 Wis. at 623-24 (quoting Rast, 240 U.S. at 365) (emphasis added). The use of trading stamps involved the elements of prize, chance, and consideration, but trading stamps did not fall within the lottery statute. The prohibition of these stamps required specific legislation. Thus, in 1916 this court acknowledged that " lottery" was not an all-inclusive term for " gaming."

¶ 138 To sum up, after reviewing relevant 19th Century and early 20th Century material, I find no evidence that the framers of the 1848 Wisconsin Constitution and the people who adopted it intended to ban all forms of gambling by approving Article IV, Section 24. They intended to prevent the legislature from authorizing a particular mass participation form of gambling that had frequently been used as a source of public and private revenue. The historical context shows that the provision requires a limiting interpretation.

III. INTERPRETING ARTICLE IV, SECTION 24 AS AMENDED IN 1987

¶ 139 Article IV, Section 24 was amended three times between 1848 and 1986. The first amendment (1965) permitted certain kinds of promotional contests by excluding such actions as watching a television program, filling out a coupon, or visiting a mercantile establishment from consideration " as an element of a lottery." The second amendment (1973) authorized charitable bingo. The third amendment (1977) authorized charitable raffles.

¶ 140 In 1987 the constitution was amended twice more to authorize pari-mutuel on-track betting and a state operated lottery. In interpreting the latter provision, we begin with the words. The 1987 lottery amendment provided:

(6) The legislature may authorize the creation of a lottery to be operated by the state as provided by law. The expenditure of public funds or of revenues derived from lottery operations to engage in promotional advertising of the Wisconsin state lottery is prohibited. Any advertising of the state lottery shall indicate the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered. The net proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief as provided by law.

¶ 141 The wording of subsection (6) was consistent with my interpretation of subsection (1). Notwithstanding the general bar in subsection (1) on legislative authorization of " any lottery," subsection (6) gave the legislature authority to permit a single sponsor——the state——to create, operate, and advertise a lottery with multiple prizes. People could make themselves eligible for these prizes by purchasing " tickets." To be fair, however, the state lottery was required to advise people of " the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered." For the state, the overriding purpose of the lottery was the generation of revenue " for property tax relief as provided by law." The professionalism and public scrutiny given to state operation of the lottery would protect people from mismanagement or fraud.

¶ 142 In 1987 the word " lottery" in subsection (6) gave no hint of applying to every gambling enterprise involving prize, chance, and consideration.

¶ 143 In interpreting the amendment, we are expected to consider the history of the times. By 1987 three of Wisconsin's neighboring states——Michigan, Illinois, and Iowa——had approved and started up lotteries like Wisconsin's. Minnesota was soon to follow. At least 26 states had established state lotteries before Wisconsin acted.

¶ 144 A report on " Gambling in California" produced by the California Research Bureau in 1997, explains the background:

Growing opposition to tax increases was a leading factor in establishing state-run lotteries in the 20th century. In 1964 New Hampshire was the first state to sponsor a lottery, followed by New York in 1967. New Jersey launched the first financially successful modern lottery in 1971.

. . . .

Lotteries are legal now in 37 states and the District of Columbia.

Roger Dunstan, Gambling in California, II-9, III-1, California Research Bureau, California State Library (1997) available at http://www.library.ca.gov/CRB/97/03/crb97003.html (last visited Mar. 2, 2006). This information provides historical context.

¶ 145 In October 1989 the Wisconsin Lottery asked Attorney General Donald J. Hanaway to answer two questions: (1) What is the scope of gaming in which the Wisconsin Lottery is authorized or permitted to engage by Article IV, Section 24 of the Wisconsin Constitution and Chapter 565 of the Wisconsin Statutes; and (2) If the Wisconsin Lottery cannot legally offer a particular type of gaming or gambling operation as part of the lottery, may such type of game or gambling operation be lawfully included in state-tribal gaming compacts within the Indian Gaming Regulatory Act, 25 U.S.C. § 2701-2721?

¶ 146 Attorney General Hanaway answered these questions in a 1990 opinion. 79 Op. Att'y Gen. 14 (1990). He concluded that the term " lottery" in the constitution and statutes did not include all forms of gaming:

Betting, playing gambling machines and operating gambling places are not to be considered as included within the meaning of the term lottery as used in the constitution, and chapters 945 and 565, Stats. (1987-88). Therefore, it is clear, that the meaning of the term lottery as contained in the constitution and both legislative enactments up to the present day does not include and is not meant to embrace all the forms of gambling.

Id. at 26.

¶ 147 Attorney General Hanaway observed that constitutional provisions on the same subject are normally construed together and considered to be in pari materia. Id. He also asserted that constitutional provisions, like statutes, should be construed to make sense.

It is apparent to me that during the entire legislative debate, over several years, on the advisability of adopting a resolution providing for a constitutional amendment authorizing a state operated lottery, during the public debate prior to the ratification of such constitutional amendment by statewide referendum in April of 1987, and during the legislative deliberations and debate on the enactment of legislation enabling the lottery constitutional amendment, chapter 565, there was neither legislative or public discussion or debate nor legislative or public intent to authorize the playing of roulette, blackjack, craps, slot machines, video gambling machines and other types and forms of casino gambling.

Id. at 26-27.

¶ 148 Attorney General Hanaway's reference to Chapter 565 of the statutes alluded to the fact that the first legislation following the enactment of the amendment dealt with the state operated lottery as a specific form of gambling.

¶ 149 The implications of Hanaway's opinion were controversial. In light of the opinion, Wisconsin's 11 Indian tribes and bands were not entitled to demand casino gambling based on the lottery amendment. However, the legislature was not barred by the constitution from authorizing casino gambling, slot machines, and video games. In fact, the legislature could authorize casino gambling " just in Indian country." Id. at 14, 32. A more subtle implication of Hanaway's opinion was that previous attorneys general, the Wisconsin Supreme Court, and the Legislative Reference Bureau had been reading too much into the original 1848 provision. For diverse reasons, Hanaway's opinion was sharply criticized, and he was defeated in the November 1990 election.[96]

¶ 150 The new attorney general, James E. Doyle, issued a second opinion in May 1991. 80 Op. Att'y Gen. 53 (1991). The Assembly Organization Committee asked him: " [D]oes Wisconsin Constitution, article IV, section 24, prohibit all forms of gambling in Wisconsin, except for those matters specified in the Constitution, or does the constitutional term 'lottery' have a narrow scope that would allow legislation to be enacted legalizing the forms of gambling to which reference is made in OAG 3-90?" Id. at 53.

¶ 151 Attorney General Doyle concluded that the legislature could not authorize any scheme involving prize, chance, and consideration without amending the constitution unless the scheme fell within the bingo, raffle, pari-mutuel on-track, or state lottery exceptions to the constitution. Id.[97] He added, however, that " the Legislature may authorize any type of state-operated lottery subject only to the advertising, use-of-revenue and off-track wagering restrictions. The Legislature may not . . . authorize such lotteries if they are not operated by the state, or fall within the bingo, raffle or on-track, pari-mutuel exceptions." Id. at 58 (emphasis added). In short, the legislature could permit the state (but only the state) to operate casinos with every form of casino gambling.

¶ 152 Attorney General Doyle said he based his opinion on " prior decisions of the Wisconsin Supreme Court, the legislative history of the 1955 criminal code revision and the manner in which the Legislature has treated the term 'lottery' in proposing amendments to our constitution and enacting legislation." Id. at 54.

¶ 153 Attorney General Doyle quoted from the familiar three-part methodology for interpreting a constitutional provision, id., but his opinion substantially disregarded this methodology to reach its conclusion.

¶ 154 The Doyle opinion operated from the reasonable premise that the term " lottery" in subsection (1) of Article IV, Section 24 and the term " lottery" in subsection (6) should be construed the same. Id. at 57 (citing United States v. Nunez, 573 F.2d 769, 771 (2nd Cir. 1978); 2A Singer, Sutherland Statutory Construction § 46.06 n.6 (Sands 4th ed. 1984)). It argued that because the term " lottery" in subsection (1) covered all gambling, the term " lottery" in subsection (6) also must cover all gambling.

¶ 155 There were significant problems with this conclusion. In focusing on subsection (1), the opinion did not take into account the meaning, purpose, history, and interpretation of the provision in 1848. It concentrated instead on broad interpretations of the term " lottery" many years after the provision was adopted. According to the opinion:

(1) " The term 'lottery' has been continuously and uniformly construed by the courts to include the three elements of prize, chance and consideration." 80 Op. Att'y Gen. at 55 (citing cases).

(2) " Numerous prior opinions of the attorney general have . . . found a violation of the lottery statute whenever the three elements of prize, chance and consideration were present in any scheme." Id.

(3) " As stated by the Wisconsin Supreme Court: 'The legislature, the courts, and the attorney general have traditionally taken a restrictive view of games, schemes, and plans involving a prize, chance, and consideration, condemning them as lotteries prohibited by the constitution.'" Id. at 55-56 (quoting Kayden Indus. 34 Wis. 2d at 724) (emphasis added).

¶ 156 In reviewing this analysis, there is no dispute " that a lottery involves three elements. There must be a prize, chance, and a consideration." State ex rel. Cowie v. La Crosse Theaters Co., 232 Wis. 153, 158, 286 N.W. 707 (1939). It does not follow, however, that every undertaking that involves prize, chance, and a consideration is a lottery.

¶ 157 Gambling is a broad term covering many forms. A lottery is one form of gambling. Pari-mutuel on-track betting is another form of gambling. Roulette is a form of gambling. Each of these forms includes the elements of prize, chance, and consideration. But each of these forms has unique characteristics. It is no more logical to say that the term " lottery" includes " roulette" than to say that the term " roulette" includes " pari-mutuel on-track betting."

¶ 158 When we carefully examine the authorities cited in Attorney General Doyle's opinion, we can begin to understand how constitutional interpretation wandered off course.

¶ 159 In 1916 Attorney General Walter Owen was asked by officials of the Wisconsin State Fair whether they could sell lapel buttons together with a " ticket for admission, upon the back of which will be a number. The holder of the lucky number will win an Overland automobile." 5 Op. Att'y Gen. 380, 380 (1916). The Attorney General concluded that this scheme constituted a lottery in violation of Wis. Stat. §§ 4523 and 4524. Id. at 382. His opinion made no reference to Article IV, Section 24 of the Wisconsin Constitution. He quoted from Monte M. Lemann, Lotteries 25, Cyclopedia of Law and Procedure 1633 (William Mack & Howard P. Nash eds., 1912), that " a lottery is a species of gaming which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize." Id. at 381 (emphasis added). Thus, the state fair plan constituted a lottery under the lottery statute. " State agencies charged with the duty of carrying forward state enterprises should not adopt methods in the prosecution of their work which amount to violation of criminal statutes." Id. at 382 (emphasis added).

¶ 160 In a 1920 opinion, Attorney General John Blaine commented on gift coupons containing four numbers. These numbers could be drawn separately and awarded prizes. See 9 Op. Att'y Gen. 9 (1920). Both the distribution of the coupons and the drawing of the numbers were orchestrated by a local newspaper. After quoting the same definition of lottery quoted in the 1916 opinion, the Attorney General said:

If the coupon is obtained without money, without consideration or without the rendering of services, as some form of valuable consideration, the return merely constitutes a method for the distribution of a gratuitous gift.

If there was a consideration here for the sale of the chance or for the receipt of the coupon, which constitutes evidence of chance, a lottery perhaps might be shown.

If, in order to receive the coupon, it is necessary for one to purchase a newspaper, in such case it might be held a lottery scheme.

Id. at 11. Attorney General Blaine did not cite Article IV, Section 24.

¶ 161 In a 1922 opinion, Attorney General William Morgan stated: " It is unlawful to sell numbered tickets for general admission . . . and make a free gift of an automobile to the purchaser and owner of a ticket." 11 Op. Att'y Gen. 396 (1922). Then he added: " Whenever prizes are given, the prize winner being determined by chance, and there being a consideration paid for such chance, it is a violation of our antilottery laws." Id. (emphasis added). The Attorney General's use of the word " whenever" in this sentence without reference to the limitations of either the constitution or statutes, represented a substantial broadening of the term " lottery."

¶ 162 In subsequent opinions, 23 Op. Att'y Gen 396 (1934) (" a scheme to sell about 100,000 tickets out of which twenty-three will be drawn to receive $500 each and the twenty-fourth to receive $10,000" ); 26 Op. Att'y Gen. 143 (1937) (bank night, involving cards bearing numbers entitling holders to prize money if they also purchase theater tickets); 28 Op. Att'y Gen. 457 (1939) (a modified form of bank night); and 28 Op. Att'y Gen. 556 (1939) (ticket dispenser at movie theater periodically gives ticket refunds depending on how many tickets are sold), attorneys general concluded that each of the respective schemes was a " lottery."

¶ 163 In most of the above-referenced opinions, the respective attorney general pointed to a specific lottery statute, such as Wis. Stat. § 348.01 (1939). This lottery statute was different from the statutes that covered gaming devices (Wis. Stat. § 348.07 (1939)), betting upon games (Wis. Stat. § 348.08 (1939)), gambling contests of skill, speed, or power of man or beast (Wis. Stat. § 348.085 (1939)), " policy" games (Wis. Stat. § 348.171 (1939)), and pool selling (bookmaking) (Wis. Stat. § 348.172 (1939)). One deficiency in Attorney General Doyle's opinion was that it failed to mention the multitude of attorney general opinions that discuss other forms of gambling besides lotteries but do not make reference to the term " lottery."

¶ 164 Attorney General Doyle also cited four cases to support the proposition that the term " lottery" has been " continuously and uniformly construed by the courts to include the three elements of prize, chance and consideration." 80 Op. Att'y Gen. at 55 (citing Kayden Indus., 34 Wis. 2d 718; State v. Laven, 270 Wis. 524, 71 N.W.2d 287 (1955); State ex rel. Regez v. Blumer, 236 Wis. 129, 294 N.W. 491 (1940); and La Crosse Theaters, 232 Wis. 153). Curiously, the opinion omitted State ex rel. Trampe v. Multerer, 234 Wis. 50, 289 N.W. 600 (1940).

¶ 165 The La Crosse Theaters case involved bank nights at a theater. The State sought to enjoin the practice as a nuisance on the ground that a bank night was a lottery. The defendant argued that a bank night did not constitute a lottery. This court disagreed, stating " that a lottery involves three elements. There must be a prize, chance and a consideration." La Crosse Theaters, 232 Wis. at 158. It concluded that going to a theater either to purchase a ticket or to register to become eligible for a prize was " consideration" and part of a " scheme" to increase ticket sales at the theater. When the court addressed an additional argument that the state should not seek to enjoin the violation of a criminal statute, it noted that the state had " abated" a place where liquor was sold during Prohibition. Then it added: " The maintenance of a lottery is as much the violation of the public policy of the state as declared by its constitution and its criminal statutes as is the sale of intoxicating liquor in violation of its criminal laws, or . . . the Eighteenth Amendment." Id. at 160-61 (emphasis added). This oblique reference to the constitution added a new dimension to the analysis.

¶ 166 The Regez and Laven cases did not discuss the constitution. They did nothing more than reiterate the three elements of a lottery. But the uncited case, Multerer, added a twist.

¶ 167 In Multerer (1940), a private citizen sought to enjoin the defendants from maintaining or permitting a gambling house and from conducting bingo on the premises. Multerer, 234 Wis. at 51. The citizen accused the defendants of openly using their premises to carry on the game of bingo " or similar and other games of chance," and contended that the premises constituted " a common gambling resort; [and] that great numbers of persons resorted to said premises for the purpose of gaming or gambling." Id. The defendants acknowledged that their public halls " had been rented to various charitable, religious, and fraternal organizations who had played bingo and used the proceeds for charitable, religious, and fraternal purposes." Id. (citing Wis. Stat. § 348.07 (1939)). The circuit court concluded that bingo was " a gambling game" and that the citizen was entitled to an injunction.

¶ 168 On appeal, the defendants contended that " bingo was not gambling as it was played upon the defendants' premises." Id. at 55. But they conceded " that the term 'gamble' is sufficiently broad to embrace the game of bingo if played for money or prizes and for purposes other than those of raising money for charitable or patriotic purposes." Id. at 55-56. The court responded:

We have no doubt that bingo, as played for about a year upon the defendants' premises, was a gambling game and was a lottery. . . . [A] lottery involves three elements. There must be a prize, chance, and a consideration. . . . In the playing of bingo there obviously was a consideration . . . Clearly, bingo as played upon the premises was a lottery, and was played in violation of the statutes of this state. Sec. 348.01, Stats.

Id. at 56 (emphasis added).

¶ 169 None of the above-quoted language is suspect. But the court plowed on: " Sec. 24, art. IV, of our constitution provides: 'The legislature shall never authorize any lottery.' That is a strong declaration of the public policy of this state." Id. " If a state or its municipalities may not be authorized by its legislature to conduct gambling and lotteries for their benefit, it seems clear that religious or charitable organizations could not be so authorized, in the face of a constitutional provision like ours." Id. at 58.

¶ 170 What the court did in Multerer——for the first time——was to assert that the constitution prohibited " gambling," which is a much broader term than " lottery." The decision is notable for its total failure to apply any of the methodology we now consider proper in interpreting a constitutional provision to discern the intent of the framers and the people who adopted the provision.

¶ 171 After the Multerer decision, attorneys general broadened their interpretation of lotteries to include other gambling. See, e.g., 32 Op. Att'y Gen. 181 (1943) (coin-in-the-slot gambling games and devices of pinball, slot machine or similar design type, as well as bingo, are lotteries prohibited by Article IV, Section 24, citing Multerer). Thus, it was not surprising when