37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State

• Decision Date: 30 January 1985
• Docket Number: No. 83-199,83-199
• Citation: 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, 694 P.2d 711 (Wyo. 1985)
• Parties: 37 GAMBLING DEVICES (CHEYENNE ELKS CLUB AND CHEYENNE MUSIC AND VENDING, INC.), Appellants (Defendants), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 711

694 P.2d 711

37 GAMBLING DEVICES (CHEYENNE ELKS CLUB AND CHEYENNE MUSIC AND VENDING, INC.), Appellants (Defendants), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-199.

Supreme Court of Wyoming.

Jan. 30, 1985.

Rehearing Denied March 4, 1985.

Douglas J. Moench, Jr., Cole & Moench, Cheyenne, for appellants.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Mary B. Guthrie, Senior Asst. Atty. Gen., and John W. Renneisen, Senior Asst. Atty. Gen., for appellee.

Before THOMAS, C.J. ^* , ROSE, BROWN and CARDINE, JJ., and RAPER, J., Retired. ^**

THOMAS, Chief Justice.

The key issue which we address in this case is a claim of exemption from the Wyoming statutes prohibiting gambling, which is premised on the ground that the accused activities consisted of "raffles or bingo conducted by charitable or nonprofit organizations." The appellants also argue at length a claim that the trial court erred in refusing to take judicial notice of the claimed fact that the Elk's Lodge is a nonprofit organization. The district court ruled that certain accused machines, devices and paraphernalia were either gambling devices per se or used for gambling, and it ordered their destruction. The district court refused to take judicial notice of the status of the Elk's Lodge as a nonprofit organization. As we analyze the ruling of the district court, even if the status of the Elk's Lodge as a nonprofit organization were established, the judge still did not perceive the machines, devices and paraphernalia as "raffles or bingo." We find no error in the rulings of the district court, and its judgment is affirmed.

" * * * In clear violation of Rule 5.01(2), W.R.A.P., appellants have failed to provide '[a] statement of the issues presented for review." * * *." Cline v. Safeco Insurance Companies, Wyo., 614 P.2d 1335, 1337 (1980).

As we noted in Cline v. Safeco Insurance Companies, supra, Rule 1.02, W.R.A.P., would justify our refusing to consider the contentions of the appellants. Because the apparent issues are of some import in Wyoming, and because we believe we have accurately gleaned the contentions of the appellants from their brief, we shall consider the issues as we have identified them with some support from the brief of the State of Wyoming. We reiterate to the Bar, however, the concerns expressed in Cline v. Safeco Insurance Companies, supra, and post a firm admonition that we will not always tolerate such glaring failures to comply with the Rules of Appellate Procedure.

There is included in the Brief of Appellants a summary of the argument which does furnish some guidance as to the apparent issues addressed by the brief. That summary is:

"I. AN ARBITRARY DECISION BASED UPON THE TAKING OF JUDICIAL NOTICE OF CHARITABLE, NON-PROFIT STATUS AS TO ONE POSSESSOR OF DEFENDANTS, AND NOT TAKING SUCH NOTICE AS TO ANOTHER IS CAPRICIOUS AND ERRONEOUS IN LAW.

"II. AN ABUSE OF DISCRETION OCCURS WHERE AB INITIO, THE TRIAL COURT FAILS TO TAKE JUDICIAL NOTICE OF A FACT COMMONLY KNOWN WITHIN THE TERRITORIAL JURISDICTION OF THE TRIAL COURT, IS NOT SUBJECT TO REASONABLE DISPUTE, AND IS CAPABLE OF ACCURATE AND READY DETERMINATION. PROTECTION OF THE OPPOSING PARTY CAN BE IMPLEMENTED BY PROVIDING AN OPPORTUNITY TO BE HEARD.

"III. JUDICIAL NOTICE MAY BE TAKEN AT ANY STAGE OF A PROCEEDING AND IS MANDATORY WHEN A REQUEST IS ACCOMPANIED WITH CORRESPONDING INFORMATION. AT THE APPELLATE LEVEL, SUCH ACTION IS PROPER WHERE PLAIN ERROR APPEARS AT THE TRIAL LEVEL.

"IV. JUDICIAL NOTICE OF A EVIDENTIARY, ADJUDICATIVE FACT ESTABLISHES THAT FACT AND LEADS TO A QUALIFICATION OF THE PARTY AS EXCEPTED FROM THE PROHIBITION CONTAINED IN A STATUTE. SUCH EXCEPTIONS SHOULD BE CONSISTENTLY APPLIED.

"V. THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION UNDER THE LAW AND OF DUE PROCESS DOES NOT TOLERATE A STATUTE THAT FORBIDS ACTS IN TERMS SO VAGUE THAT MEN OF COMMON INTELLIGENCE MUST NECESSARILY GUESS AT ITS MEANING AND DIFFER AS TO ITS APPLICATION."

In the brief filed on behalf of the State of Wyoming the following issues are suggested:

"I. SHOULD THE DEVICES WHICH WERE SEIZED BE ORDERED DESTROYED PURSUANT TO SECTION 6-9-108, W.S. 1977?

"II. WAS IT ERROR FOR THE TRIAL COURT TO REFUSE TO TAKE JUDICIAL NOTICE THAT ELKS LODGE NUMBER 660 OF CHEYENNE, WYOMING

WAS A NONPROFIT ORGANIZATION?

"III. IS SECTION 6-9-111, W.S. 1977, WHICH PROVIDES AN EXEMPTION FROM THE GENERAL PROSCRIPTION AGAINST GAMBLING BY ALLOWING CHARITABLE OR NONPROFIT ORGANIZATIONS TO CONDUCT RAFFLES OR BINGO, APPLICABLE?

"IV. SHOULD THIS COURT CONSIDER APPELLANT'S ARGUMENT CONCERNING CONSTITUTIONALITY OF A WYOMING STATUTE, WHEN THE ARGUMENT IS INCOMPLETE AND CONFUSING?"

On June 24, 1983, officers of the Cheyenne Police Department seized certain machines, devices and paraphernalia which allegedly violated Wyoming Statutes prohibiting gambling ¹ from premises owned and occupied by Elk's Lodge Number 660. The things that were seized included two electronic machines identified as Shawnee games, an electronic bingo game, four blackjack tables, a blackjack table top, three craps tables, eight stamp-vending machines which had been modified to sell "pickle cards," a pickle jar with numbers inside, poker chips, cards, and other items including some cash. A warrant had been issued pursuant to § 6-9-108, W.S.1977, ² and after the seizure the district attorney filed a Petition for Determination As to Gambling Devices and Their Destruction in accordance with the same statute. The matter was set for hearing on June 24, 1983, and on the date set for hearing the Elk's Lodge filed a Resistance to Motion to Return Property, which essentially attacked the search warrant as unconstitutional, the statute as unconstitutional, and asserted that the seized items were not designed or adapted for gambling. Following a two-day hearing the State moved for a directed verdict on its petition on the ground that the Elk's Lodge had not established that it was a charitable or nonprofit organization. At this juncture the following colloquy occurred between the district court and counsel for the Elk's Lodge:

"[COUNSEL]: Your Honor, I would just say that it is well known and it has been established throughout that Elk's Lodges in the United States cannot be Elk's Lodges if they are profit making.

"THE COURT: I don't know that it's an item that I can necessarily take Judicial knowledge of."

The record discloses no other argument or motion to take judicial notice in the court below.

Following the hearing counsel submitted briefs on the issue of constitutionality of § 6-9-108, W.S.1977, and the district court entered its decision letter on July 26, 1983. The district court found that a number of the items seized were gambling devices which were prohibited by the laws of Wyoming and were subject to forfeiture and destruction as nuisances. Some of the seized items the district court held had not been shown by the evidence at the hearing to have been used in connection with gambling, and they were not ordered destroyed. Three craps tables and one blackjack table, which apparently were owned by the Cystic Fibrosis Foundation, were ordered set aside until that organization could be afforded an opportunity to be heard on the question of whether they should be destroyed.

The district court in addressing the question of the statutory exemption found in § 6-9-111, W.S.1977, ³ upon which the Elk's Lodge relied, stated:

" * * * As much as the Court might be inclined, it is unable in this instance to find any authority for taking judicial knowledge of the charitable or nonprofit status of the local Elks Club. A trustee, Mr. Barker, did testify at the hearing that the money derived from such machines generally went back to the club operation, but that if anything was left over, it would go to charity. The failure to establish the charitable or nonprofit character of the organization is fatal to any claim of exemption from the gambling laws of this state."

On August 1, 1983, a motion to intervene in the proceeding was filed on behalf of Cheyenne Music and Vending Company, Inc., which is the owner of the electronic machines. The district court held a hearing on that motion but entered its Order Denying Motion to Intervene on August 22, 1983. On that day the final written Order for Destruction of Gambling Devices was entered, which formalized the findings set forth in the court's decision letter. It is from that order that this appeal is taken. After the Notice of Appeal was filed the district court entered an appropriate Order for Stay of Execution on Order of Destruction pending the appeal.

As in the district court, the appellants vigorously argue the availability of the statutory exception found in § 6-9-111, W.S.1977:

" * * * But nothing in this section shall be construed as applying to games of chance known as raffles or bingo conducted by charitable or nonprofit organizations and the tickets of such raffles or bingo shall be sold only in this state."

The initial argument with respect to the availability of this exception focuses upon the claimed error on the part of the district court in refusing to take judicial notice of the nonprofit character of Elk's Lodge Number 660. This issue now is governed by Rule 201, W.R.E., which provides:

"(a) Scope of rule.--This rule governs only judicial notice of adjudicative facts.

"(b) Kinds of facts.--A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

"(c) When discretionary.--A court may take judicial notice, whether requested or not.

"(d) When mandatory.--A court shall take judicial notice if requested by a party and supplied with the necessary information.

"(e) Opportunity to be heard.--A party is entitled upon timely request to an opportunity...