Those attacking a state-approved plan must show that it is more probable than not that a population deviation from absolute equality of districts of less than 10 percent reflects the predominance of illegitimate reapportionment factors rather than the legitimate considerations. Harris v. Arizona Independent Redistricting Commission, 578 U.S. 253, 136 S. Ct. 1301, 194 L. Ed. 2d 497 (2016). IV,4Representatives to the assembly, how chosen. Section 4. [As amended Nov. 1881 and Nov. 1982] The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November in even-numbered years, by the qualified electors of the several districts, such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] Under this section, assembly districts must be bounded by county, precinct, town, or ward lines. Given federal one person, one vote requirements, bounding every assembly district by county, precinct, town, and ward lines may not be possible. However, this section must be given full effect to the extent it does not conflict with federal law. The court is particularly skeptical of town and ward splits because the smaller the political subdivision, the easier it may be to preserve its boundaries. Johnson v. Wisconsin Elections Commission, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559, 21-1450. Contiguity is a constitutional imperative for all districts. Contiguous territory is territory that is touching or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines. The contiguity requirements are not satisfied when a district includes detached territory that is a “municipal island,” a portion of a municipality separated from the main body of the municipality that is created via annexation, even if the main body of the municipality is located in the district. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. Touch-point contiguity occurs when territory is contiguous only because it is joined at a single point. Since territory that touches at a single point is indeed touching, touch-point contiguity alone does not violate the contiguity requirement. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. U.S. Supreme Court decisions requiring almost absolute equality of population among electoral districts render nugatory the state court’s construction of art. IV, sec. 4, as prohibiting assembly districts from dividing counties except where a county is entitled to more than one assembly member. 58 Atty. Gen. 88.
IV,5Senators, how chosen. Section 5. [As amended Nov. 1881 and Nov. 1982] The senators shall be elected by single districts of convenient contiguous territory, at the same time and in the same manner as members of the assembly are required to be chosen; and no assembly district shall be divided in the formation of a senate district. The senate districts shall be numbered in the regular series, and the senators shall be chosen alternately from the odd and even-numbered districts for the term of 4 years. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] Contiguity is a constitutional imperative for all districts. Contiguous territory is territory that is touching or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines. The contiguity requirements are not satisfied when a district includes detached territory that is a “municipal island,” a portion of a municipality separated from the main body of the municipality that is created via annexation, even if the main body of the municipality is located in the district. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. Touch-point contiguity occurs when territory is contiguous only because it is joined at a single point. Since territory that touches at a single point is indeed touching, touch-point contiguity alone does not violate the contiguity requirement. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. IV,6Qualifications of legislators. Section 6. No person shall be eligible to the legislature who shall not have resided one year within the state, and be a qualified elector in the district which he may be chosen to represent. A candidate for election to Congress need not be a resident of the district at the time he or she files nomination papers and executes the declaration of intent to accept the office if elected. A candidate for congress must be an inhabitant of the state at the time of election. 61 Atty. Gen. 155.
IV,7Organization of legislature; quorum; compulsory attendance. Section 7. Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide. IV,8Rules; contempts; expulsion. Section 8. Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and with the concurrence of two-thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause. Courts have no jurisdiction to review legislative rules of proceeding, which are those rules having to do with the process the legislature uses to propose or pass legislation or how it determines the qualifications of its members. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07-1160. The legislature cannot sentence a person to confinement for contempt without notice and without giving an opportunity to respond to the charge. Groppi v. Leslie, 404 U.S. 496, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972). IV,9Officers. Section 9. [As amended April 1979 and Nov. 2014] IV,9(1)(1) Each house shall choose its presiding officers from its own members. IV,9(2)(2) The legislature shall provide by law for the establishment of a department of transportation and a transportation fund. [1977 J.R. 32, 1979 J.R. 3, vote April 1979; 2011 J.R. 4, 2013 J.R. 1, vote Nov. 2014] IV,10Journals; open doors; adjournments. Section 10. Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy. The doors of each house shall be kept open except when the public welfare shall require secrecy. Neither house shall, without consent of the other, adjourn for more than three days. IV,11Meeting of legislature. Section 11. [As amended Nov. 1881 and April 1968] The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1965 J.R. 57, 1967 J.R. 48, vote April 1968] How the legislature meets, when it meets, and what descriptive titles the legislature assigns to those meetings or their operating procedures constitute parts of the legislative process with which the judicial branch has no jurisdiction or right to interfere. League of Women Voters of Wisconsin v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209, 19-0559. IV,12Ineligibility of legislators to office. Section 12. No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected. A legislator may be elected to a constitutional or statutory state elective office even though the emoluments of the office were raised during the legislator’s legislative term. If so elected, the legislator is limited by s. 13.04 (1) to the emoluments of the office prior to the increase. A legislator is not eligible, however, for appointment to an office created during the legislator’s term or to an office the emoluments of which appointive office were raised during the legislator’s legislative term. 63 Atty. Gen. 127.
IV,13Ineligibility of federal officers. Section 13. [As amended April 1966] No person being a member of congress, or holding any military or civil office under the United States, shall be eligible to a seat in the legislature; and if any person shall, after his election as a member of the legislature, be elected to congress, or be appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall vacate his seat. This restriction shall not prohibit a legislator from accepting short periods of active duty as a member of the reserve or from serving in the armed forces during any emergency declared by the executive. [1963 J.R. 34, 1965 J.R. 14, vote April 1966] IV,14Filling vacancies. Section 14. The governor shall issue writs of election to fill such vacancies as may occur in either house of the legislature. IV,15Exemption from arrest and civil process. Section 15. Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session. The privilege under this section can be invoked by a legislator only if the legislator is subpoenaed, not if an aide is subpoenaed. State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984). The members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included this section in the Wisconsin Constitution. The phrase “treason, felony and breach of the peace” in this section was intended to mean all crimes. State v. Burke, 2002 WI App 291, 258 Wis. 2d 832, 653 N.W.2d 922, 02-2161. IV,16Privilege in debate. Section 16. No member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate. The sphere of legislative action protected under this section is broader than floor deliberations. A legislator may invoke the privilege under this section to immunize an aide from a subpoena to testify as to an investigation conducted by the aide at the legislator’s request. State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984). Not all activities of a legislator are protected by this section insofar as that activity is not an integral part of the deliberative and communicative processes. While legislative acts are protected by the speech and debate clause, political acts are not. Hiring, directing, and managing legislative caucus staff to oversee political campaigns is not protected. By its very nature, engaging in campaign activity is political. State v. Chvala, 2004 WI App 53, 271 Wis. 2d 115, 678 N.W.2d 880, 03-0442. See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 681 N.W.2d 230, 03-0106. This section provides only immunity from prosecution based on use of communications, and not secrecy for communications of government officials and employees. Custodian of Records v. State, 2004 WI 65, 272 Wis. 2d 208, 680 N.W.2d 792, 02-3063. In a federal criminal prosecution against a state legislator, there is no legislative privilege barring introduction of evidence of the legislator’s legislative acts. United States v. Gillock, 445 U.S. 360, 100 S. Ct. 1185, 63 L. Ed. 2d 454 (1980). IV,17Enactment of laws. Section 17. [As amended April 1977] IV,17(1)(1) The style of all laws of the state shall be “The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:”. IV,17(2)(2) No law shall be enacted except by bill. No law shall be in force until published. IV,17(3)(3) The legislature shall provide by law for the speedy publication of all laws. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] The enacting clause is not required for each particular statute. According to legislative rule, when an act, or part of an act, creates a statute section number, that action indicates a legislative intent to make the section a part of the Wisconsin Statutes. Hence, because the legislature can intend that only a part of an act creates a statute, it does not follow that each statute must contain all the constituent parts of an act, namely, the enabling clause. State v. Weidman, 2007 WI App 258, 306 Wis. 2d 723, 743 N.W.2d 854, 06-2168. In order for the legislature to create a law, the proposed law must be enacted by bill. Mere enactment of a bill to ratify a collective bargaining agreement and publication of it as an act was not sufficient to cause a provision of the collective bargaining agreement to become a law enacted under this section to create an exception to the public records law, s. 19.35. The act did not reference s. 19.35 or the contract provision that purportedly modified that law, did not purport to amend any published statutes, and did not contain any language that might give notice that the statute was being amended. As a result, the contract provision was not enacted by bill and remained a contractual provision and was not a “law” that is an exception to s. 19.35. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07-1160. Under certain circumstances, incorporation by reference in a bill may be effective to work a change in the law. Cases recognizing incorporation by reference have generally dealt with incorporating the provisions of other published statutes and with the establishment of standards by reference, not incorporation of sources being given the force of law. The source being incorporated cannot be a law itself without having been enacted in a manner sufficient to satisfy this section. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07-1160. In order for the legislature to create a law, the proposed law must be enacted by bill and be published. For some action to be sufficient to constitute publication, that action must be evaluated in light of the purpose publication seeks to achieve, i.e., is the public provided with sufficient notice of the law that is being enacted or amended. The publication requirement is meant to avoid the situation where the people have their rights sacrificed by the operation of laws that they are bound to know, but have no means of knowing. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07-1160. This section vests the legislature with the constitutional power to “provide by law” for publication. The legislature has set the requirements for publication. If a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that, it does not in terms legislate but it invades the constitutional power of the legislature to declare what shall become law. This a court may not do. State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, 11-0613. The state legislature cannot constitutionally adopt prospective federal legislation by reference. 63 Atty. Gen. 229.
Former article VII, section 21 [17], of the Wisconsin Constitution requires full text publication of all general laws, and publication of an abstract or synopsis of such laws would not be sufficient. Methods other than newspaper publication, under s. 985.04, may be utilized to give public notice of general laws. 63 Atty. Gen. 346. IV,18Title of private bills. Section 18. No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. Chapter 418, laws of 1977, s. 923 (48) (a) is a private or local bill enacted unconstitutionally. Soo Line Railroad Co. v. DOT, 101 Wis. 2d 64, 303 N.W.2d 626 (1981). A specific prison siting provision in a budget act did not violate this section. The test for distinguishing a private or local law is established. Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 79, 387 N.W.2d 254 (1986). Challenged legislation, although general on its face, violated this section because the classification employed was not based on any substantial distinction between classes employed nor was it germane to purposes of the legislation. City of Brookfield v. Milwaukee Metropolitan Sewerage District, 144 Wis. 2d 896, 426 N.W.2d 591 (1988). A bill has a single subject if all of its provisions are related to the same general purpose and are incident to that purpose. A title is insufficient only if it fails to reasonably suggest the purpose of the act or if a reading of the act with the full scope of the title in mind discloses a provision clearly outside the title. City of Brookfield v. Milwaukee Metropolitan Sewerage District, 171 Wis. 2d 400, 491 N.W.2d 484 (1992). Discussing a two-prong analysis for determining violations of this section. City of Oak Creek v. DNR, 185 Wis. 2d 424, 518 N.W.2d 276 (Ct. App. 1994). Courts will not afford legislation challenged under this section a presumption of constitutionality unless the record shows that the legislature adequately considered the legislation in question. When a majority of the members of the assembly co-sponsored a single-subject bill exempting YMCAs from property taxation before the measure was added to the budget bill and a majority of senators either co-sponsored the stand-alone bill or considered and voted for the proposal as members of the Joint Finance Committee, there was a presumption that the legislators who sponsored the bill or voted for it in committee adequately considered the proposal. Lake Country Racquet & Athletic Club, Inc. v. Morgan, 2006 WI App 25, 289 Wis. 2d 498, 710 N.W.2d 701, 04-3061. IV,19Origin of bills. Section 19. Any bill may originate in either house of the legislature, and a bill passed by one house may be amended by the other. IV,20Yeas and nays. Section 20. The yeas and nays of the members of either house on any question shall, at the request of one-sixth of those present, be entered on the journal. The taking of yea and nay votes and the entry on the journals of the senate and assembly can be complied with by recording the total aye vote together with a listing of the names of those legislators who voted no, were absent or not voting, or were paired on the question. Discussing article V, section 10; article VIII, section 8; and article XII, section 1. 63 Atty. Gen. 346.
IV,21Compensation of members. Section 21. [Amended Nov. 1867 and Nov. 1881; repealed April 1929; see 1865 J.R. 9, 1866 J.R. 3, 1867 c. 25, vote Nov. 1867; 1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1927 J.R. 57, 1929 J.R. 6, vote April 1929.] IV,22Powers of county boards. Section 22. The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe. Milwaukee County may, by ordinance, provide credit in a retirement system for service of an employee with another municipality. 61 Atty. Gen. 177.
IV,23Town and county government. Section 23. [As amended Nov. 1962, April 1969, and April 1972] The legislature shall establish but one system of town government, which shall be as nearly uniform as practicable; but the legislature may provide for the election at large once in every 4 years of a chief executive officer in any county with such powers of an administrative character as they may from time to time prescribe in accordance with this section and shall establish one or more systems of county government. [1959 J.R. 68, 1961 J.R. 64, vote Nov. 1962; 1967 J.R. 49, 1969 J.R. 2, vote April 1969; 1969 J.R. 32, 1971 J.R. 13, vote April 1972] Abolishing the office of town assessor in those counties adopting a countywide assessor system does not amount to the creation of a different system of town government. Thompson v. Kenosha County, 64 Wis. 2d 673, 221 N.W.2d 845 (1974). Only enactments that unnecessarily interfere with the system’s uniformity in a material respect are invalidated by this section. Classifications based upon population have generally been upheld. State ex rel. Wolf v. Town of Lisbon, 75 Wis. 2d 152, 248 N.W.2d 450 (1977). IV,23aChief executive officer to approve or veto resolutions or ordinances; proceedings on veto. Section 23a. [As created Nov. 1962 and amended April 1969] Every resolution or ordinance passed by the county board in any county shall, before it becomes effective, be presented to the chief executive officer. If he approves, he shall sign it; if not, he shall return it with his objections, which objections shall be entered at large upon the journal and the board shall proceed to reconsider the matter. Appropriations may be approved in whole or in part by the chief executive officer and the part approved shall become law, and the part objected to shall be returned in the same manner as provided for in other resolutions or ordinances. If, after such reconsideration, two-thirds of the members-elect of the county board agree to pass the resolution or ordinance or the part of the resolution or ordinance objected to, it shall become effective on the date prescribed but not earlier than the date of passage following reconsideration. In all such cases, the votes of the members of the county board shall be determined by ayes and noes and the names of the members voting for or against the resolution or ordinance or the part thereof objected to shall be entered on the journal. If any resolution or ordinance is not returned by the chief executive officer to the county board at its first meeting occurring not less than 6 days, Sundays excepted, after it has been presented to him, it shall become effective unless the county board has recessed or adjourned for a period in excess of 60 days, in which case it shall not be effective without his approval. [1959 J.R. 68, 1961 J.R. 64, vote Nov. 1962; 1967 J.R. 49, 1969 J.R. 2, vote April 1969] A county executive’s power to veto ordinances and resolutions extends to rezoning petitions that are in essence proposed amendments to the county zoning ordinance. The veto is subject to limited judicial review. Schmeling v. Phelps, 212 Wis. 2d 898, 569 N.W.2d 784 (Ct. App. 1997), 96-2661. A county executive’s partial-veto power is similar to the governor’s power. 73 Atty. Gen. 92.
A county board may not amend a resolution, ordinance, or part thereof vetoed by the county executive, but can pass a separate substitute for submission to the executive. The board has a duty to promptly reconsider vetoed resolutions, ordinances, or parts thereof. 74 Atty. Gen. 73.
A county executive has the authority to reduce a line item budget appropriation from one specific dollar figure to another through the use of his or her partial veto. Constitutional amendments limiting the governor’s veto authority in article V, section 10 (1) (c) impose no corresponding limit upon the veto authority of the county executive. OAG 6-14.
IV,24Gambling. Section 24. [As amended April 1965, April 1973, April 1977, April 1987, April 1993, and April 1999] IV,24(1)(1) Except as provided in this section, the legislature may not authorize gambling in any form. IV,24(2)(2) Except as otherwise provided by law, the following activities do not constitute consideration as an element of gambling: IV,24(2)(a)(a) To listen to or watch a television or radio program. IV,24(2)(b)(b) To fill out a coupon or entry blank, whether or not proof of purchase is required. IV,24(2)(c)(c) To visit a mercantile establishment or other place without being required to make a purchase or pay an admittance fee. IV,24(3)(3) The legislature may authorize the following bingo games licensed by the state, but all profits shall accrue to the licensed organization and no salaries, fees or profits may be paid to any other organization or person: bingo games operated by religious, charitable, service, fraternal or veterans’ organizations or those to which contributions are deductible for federal or state income tax purposes. All moneys received by the state that are attributable to bingo games shall be used for property tax relief for residents of this state as provided by law. The distribution of moneys that are attributable to bingo games may not vary based on the income or age of the person provided the property tax relief. The distribution of moneys that are attributable to bingo games shall not be subject to the uniformity requirement of section 1 of article VIII. In this subsection, the distribution of all moneys attributable to bingo games shall include any earnings on the moneys received by the state that are attributable to bingo games, but shall not include any moneys used for the regulation of, and enforcement of law relating to, bingo games. IV,24(4)(4) The legislature may authorize the following raffle games licensed by the state, but all profits shall accrue to the licensed local organization and no salaries, fees or profits may be paid to any other organization or person: raffle games operated by local religious, charitable, service, fraternal or veterans’ organizations or those to which contributions are deductible for federal or state income tax purposes. The legislature shall limit the number of raffles conducted by any such organization. IV,24(5)(5) This section shall not prohibit pari-mutuel on-track betting as provided by law. The state may not own or operate any facility or enterprise for pari-mutuel betting, or lease any state-owned land to any other owner or operator for such purposes. All moneys received by the state that are attributable to pari-mutuel on-track betting shall be used for property tax relief for residents of this state as provided by law. The distribution of moneys that are attributable to pari-mutuel on-track betting may not vary based on the income or age of the person provided the property tax relief. The distribution of moneys that are attributable to pari-mutuel on-track betting shall not be subject to the uniformity requirement of section 1 of article VIII. In this subsection, the distribution of all moneys attributable to pari-mutuel on-track betting shall include any earnings on the moneys received by the state that are attributable to pari-mutuel on-track betting, but shall not include any moneys used for the regulation of, and enforcement of law relating to, pari-mutuel on-track betting. IV,24(6)(a)(a) The legislature may authorize the creation of a lottery to be operated by the state as provided by law. The expenditure of public funds or of revenues derived from lottery operations to engage in promotional advertising of the Wisconsin state lottery is prohibited. Any advertising of the state lottery shall indicate the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered. The net proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief for residents of this state as provided by law. The distribution of the net proceeds of the state lottery may not vary based on the income or age of the person provided the property tax relief. The distribution of the net proceeds of the state lottery shall not be subject to the uniformity requirement of section 1 of article VIII. In this paragraph, the distribution of the net proceeds of the state lottery shall include any earnings on the net proceeds of the state lottery. IV,24(6)(b)(b) The lottery authorized under par. (a) shall be an enterprise that entitles the player, by purchasing a ticket, to participate in a game of chance if: 1) the winning tickets are randomly predetermined and the player reveals preprinted numbers or symbols from which it can be immediately determined whether the ticket is a winning ticket entitling the player to win a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game; or 2) the ticket is evidence of the numbers or symbols selected by the player or, at the player’s option, selected by a computer, and the player becomes entitled to a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game if some or all of the player’s symbols or numbers are selected in a chance drawing or game, if the player’s ticket is randomly selected by the computer at the time of purchase or if the ticket is selected in a chance drawing. IV,24(6)(c)(c) Notwithstanding the authorization of a state lottery under par. (a), the following games, or games simulating any of the following games, may not be conducted by the state as a lottery: 1) any game in which winners are selected based on the results of a race or sporting event; 2) any banking card game, including blackjack, baccarat or chemin de fer; 3) poker; 4) roulette; 5) craps or any other game that involves rolling dice; 6) keno; 7) bingo 21, bingo jack, bingolet or bingo craps; 8) any game of chance that is placed on a slot machine or any mechanical, electromechanical or electronic device that is generally available to be played at a gambling casino; 9) any game or device that is commonly known as a video game of chance or a video gaming machine or that is commonly considered to be a video gambling machine, unless such machine is a video device operated by the state in a game authorized under par. (a) to permit the sale of tickets through retail outlets under contract with the state and the device does not determine or indicate whether the player has won a prize, other than by verifying that the player’s ticket or some or all of the player’s symbols or numbers on the player’s ticket have been selected in a chance drawing, or by verifying that the player’s ticket has been randomly selected by a central system computer at the time of purchase; 10) any game that is similar to a game listed in this paragraph; or 11) any other game that is commonly considered to be a form of gambling and is not, or is not substantially similar to, a game conducted by the state under par. (a). No game conducted by the state under par. (a) may permit a player of the game to purchase a ticket, or to otherwise participate in the game, from a residence by using a computer, telephone or other form of electronic, telecommunication, video or technological aid. [1963 J.R. 35, 1965 J.R. 2, vote April 1965; 1971 J.R. 31, 1973 J.R. 3, vote April 1973; 1975 J.R. 19, 1977 J.R. 6, vote April 1977; 1985 J.R. 36, 1987 J.R. 3, vote April 1987; 1985 J.R. 35, 1987 J.R. 4, vote April 1987; 1991 J.R. 27, 1993 J.R. 3, vote April 1993; 1997 J.R. 19, 1999 J.R. 2, vote April 1999] The governor acted contrary to the public policy embodied in state law and therefore acted without authority by agreeing to an Indian gaming compact allowing the conduct of games prohibited by this section and criminal statutes. Panzer v. Doyle, 2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, 03-0910. The 1993 amendment to this section did not invalidate the original compacts between the state and Indian tribes. Because the original compacts contemplated extending and amending the scope of Indian gaming, the parties’ right of renewal was constitutionally protected by the contract clauses of the U.S. and Wisconsin Constitutions; and amendments to the original compacts that expand the scope of gaming were likewise constitutionally protected by the contract clauses of the U.S. and Wisconsin Constitutions. Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408, 03-0421. The state lottery board may conduct any lottery game that complies with the ticket language in the constitution and ch. 565. The term “lottery” in the constitution and statutes does not include any other forms of betting, playing or operation of gambling machines and devices and other forms of gambling defined in ch. 945. The legislature can statutorily authorize other non-lottery gambling including casino-type games. 79 Atty. Gen. 14.
Under the federal Indian Gaming Regulatory Act, 25 USCA 2701 to 2721, gambling activities, as defined and prohibited in ch. 945, other than lotteries and pari-mutuel on-track wagering, are not permitted by any person within or without Indian country in Wisconsin. The prohibition includes all non-lottery gambling such as casino-type games, gambling machines, and other devices. The legislature can statutorily authorize non-lottery gambling within Indian country. 79 Atty. Gen. 14.
Enactment of legislation that would propose to license and regulate certain “amusement devices” that are gambling machines would authorize “gambling” in violation of this section. OAG 2-96.
The state’s interest in preventing organized crime infiltration of a tribal bingo enterprise does not justify state regulation in light of compelling federal and tribal interest supporting it. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987). Wisconsin cannot have it both ways. The state must entirely prohibit poker within its borders if it wants to prevent any Indian tribe from offering poker on the tribe’s sovereign lands. When the state decriminalized hosting poker for taverns, it could no longer deny that game to tribes as a matter of federal law. Wisconsin v. Ho-Chunk Nation, 784 F.3d 1076 (2015).
