Gaming hopes are riding on ruling

Dairyland track wants old limits put on casinos

By STEVE SCHULTZE

sschultze@journalsentinel.comPosted: July 4, 2006

Not even the Dairyland Greyhound Park racetrack owners who brought a longstanding lawsuit seeking an end to tribal casinos expect a ruling that will go that far.

But plan on some legal fireworks when the state Supreme Court finally issues its decision in the casethat seeks to change the odds in the state's gambling industry. The court's term formally ended Friday, but it still has about a dozen cases to decide.
The gambling ruling might come down in the next few weeks, a court spokeswoman said.
A death sentence for the state's 28 casinos and mini-casinos - exactly what the Dairyland owners asked for when the suit was filed in 2001 - "would be a huge, huge stretch," said Roy Berger, Dairyland's vice president.
"It would be unrealistic to think the Native American gaming industry is going to go away because of this decision," Berger said, even if the high court tilts toward Dairyland's view that Wisconsin's casinos have grown beyond what state voters had in mind in approving a 1993 constitutional amendment restricting gambling.
Dairyland, the state's sole surviving pari-mutuel racetrack, still is looking for a foothold in the casino business. In Wisconsin, casino gambling is legal only on tribal trust land. It's a business that's grown from small change a decade ago to over $1.2 billion last year.
Instead of advocating obliterating the industry, which now boasts 35,000 direct and indirect jobs in the state, Dairyland argues that the court should perhaps turn back the legal clock to 1998.
That would reimpose old limits on casinos - no roulette, craps or poker anywhere and fewer slot machines at the state's biggest grossing casino in Milwaukee, operated by the Forest County Potawatomi tribe.
In Berger's dream scenario, such a ruling would be quickly followed with a move in the Legislature to amend the state constitution once more, this time permitting casino games at the Dairyland track in Kenosha. Tavern owners and perhaps others also would likely seek a piece of the action, after years of futile efforts to crack into the casino market.
"We would like to compete in any way we can," said Berger. "What we are looking for is some equity."
Any ruling altering the casino status quo is likely to be quickly challenged in federal court. Potawatomi officials say the tribes are operating under terms of federally approved casino deals, and those take precedence over state law.
The tribes are not active participants in the Dairyland case but say uncertainty from the unsettled case has hurt their businesses. Expansion on hold
The Potawatomi tribe has held off a $240 million expansion of its Milwaukee casino while the Dairyland case is open but will break ground within a month after the decision is issued, tribal spokesman Ken Walsh said.
The project would add more than 500,000 square feet - tripling its current size - at Potawatomi Bingo Casino in the Menomonee Valley. The addition would create room for more slot machines and table games, a bigger parking ramp and a direct road link to the casino from the James E. Groppi Unity Bridge, formerly known as the 16th Street Viaduct.
That would mean more revenue for the tribe, about 1,000 more jobs at the casino and 500 construction jobs, the tribe says.
The idea of moving the casino downtown has been all but abandoned, Walsh said. Tribal officials had said they were open to a downtown move. But obstacles to a move were significant, including obtaining the required federal and state approval, and the problem of disposing of the existing casino facility.
Although the Dairyland case could spawn various legal maneuvers, Gov. Jim Doyle's administration remains confident the Supreme Court will rule against the dog track owners, said Sean Dilweg, a top Department of Administration official who played a key role in negotiating casino compacts for the state.
"We expect to be successful again at the Supreme Court," Dilweg said, with a decision affirming lower court rejections of Dairyland's claims. "We don't envision any change to the current gaming in Wisconsin," he said.
State lawyers have argued that the 1993 constitutional amendment limiting gambling to pari-mutuel betting and the lottery did not negate state-tribal gambling compacts first negotiated in 1991 and '92 by then-Gov. Tommy G. Thompson. Subsequent changes to those casino compacts piggybacked on the original deals and were approved by the federal government, giving them priority over state restrictions, say state lawyers.
Dilweg said he hoped the Dairyland decision will reverse a portion of a 2004 state Supreme Court ruling in another case that said Doyle exceeded his authority by approving new casino games. That provision has not been enforced by federal prosecutors in the state.
The earlier case was decided on a 4-3 vote. Since then, one of the justices in the majority, Diane Sykes, has left the court. Doyle appointed her successor, Louis Butler. That's given rise to speculation that the court may now lean 4-3 in upholding the Doyle casino deals.
Assembly Speaker John Gard, one of the plaintiffs in the earlier casino case, noted the change and said he had become "somewhat cynical" about the prospects for curbing casinos. Even though the court ruled against casino expansions, they've been allowed anyway, he said.
"One of the most frustrating things is the previous decision has not been enforced," said Gard, who is leaving the Legislature to run for the U.S. House.
Gard said the new Supreme Court ruling would "cause quite a stir." Whatever the result, he said, the politics of gambling and gambling-related donations to Doyle were certain to be a major decision in this year's campaign for governor.
Dairyland has hedged its bets. A purchase-option deal for Dairyland to sell the track to the Menominee tribe for a casino for some $40.5 million still stands, said Evan Zeppos, a spokesman for the Kenosha casino project. From the July 5, 2006 editions of the Milwaukee Journal Sentinel