State v. Two IGT Video Poker Games, Model FA 180

• Decision Date: 01 February 1991
• Docket Number: No. 88-885,88-885
• Citation: 237 Neb. 145,465 N.W.2d 453
• Parties: STATE of Nebraska, Appellee, v. TWO IGT VIDEO POKER GAMES, MODEL FA180, et al., Appellees, Schmit Industries, Inc., Appellant.
• Court: Nebraska Supreme Court

Page 453

465 N.W.2d 453

237 Neb. 145

STATE of Nebraska, Appellee, v. TWO IGT VIDEO POKER GAMES, MODEL FA180, et al., Appellees Schmit Industries, Inc., Appellant.

No. 88-885.

Supreme Court of Nebraska.

Feb. 1, 1991.

Syllabus by the Court

1. Penalties and Forfeitures: Equity. Actions for forfeiture are generally considered to sound in equity.

2. Penalties and Forfeitures: Equity: Appeal and Error. In an equitable action in rem to transfer the title of allegedly unlawful items from the owner to the State, the Nebraska Supreme Court applies the usual rule that equity actions are reviewed de novo on the record and reaches its own conclusion independent of the findings of the trial court; provided, however, where credible evidence is in conflict on a material issue of fact, the Nebraska Supreme Court will consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts over another.

3. Constitutional Law: Standing: Statutes. In order to have standing to challenge the constitutionality of a statute under either the federal or state Constitution, the challenger must be one who is, or is about to be, adversely affected by the statutory language in question and must show that as a consequence of the alleged constitutional violation the challenger is deprived of a protected right.

4. Appeal and Error. Errors which are assigned but not discussed will not be considered by the Nebraska Supreme Court.

5. Constitutional Law: Statutes. Unlike a vagueness challenge, which questions the clarity of statutory language, an attack based on the overbreadth of a statute asserts that the questioned language impermissibly infringes upon some constitutionally protected right.

6. Constitutional Law: Statutes. A statute may be unconstitutionally overbroad on its face only if its overbreadth is substantial, that is, when the statute would be unconstitutional in a substantial portion of the situations to which it is applicable.

7. Legislature: Courts: Statutes: Public Policy. It is not the function of the judiciary to second-guess the wisdom, policy, or expediency of legislative enactments.

8. Statutes: Penalties and Forfeitures. Statutes which impose forfeitures are subject to strict construction.

9. Constitutional Law: Standing: Statutes. One who is engaged in conduct which is clearly within a statutory prohibition cannot complain that that prohibition is vague when applied to the conduct of another.

10. Intent: Circumstantial Evidence: Proof. The existence of a required intent, knowledge, or other state of mind may be established through circumstantial evidence.

John H. Albin, of DeCamp Legal Services, P.C., Lincoln, and Clarence E. Mock, of Johnson and Mock, Oakland, for appellant.

Robert M. Spire, Atty. Gen., and William L. Howland, and Michael G. Heavican, Lancaster County Atty., and John A. Colborn, Lincoln, for appellee State.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

This is an appeal from a judgment forfeiting the defendant-appellee IGT Video Poker Game, Model FA180, machines owned by defendant-appellant, Schmit Industries, Inc., to plaintiff-appellee, State of Nebraska.

We begin by noting that actions for forfeiture are generally considered to sound in equity. See, e.g., In re Forfeiture of $30,632.41, 184 Mich.App. 677, 459 N.W.2d 99 (1990); Sturm v. Crowley, 131 W.Va. 505, 48 S.E.2d 350 (1948); Robinson Cadillac Motor Car Co. v. Ratekin, 104 Neb. 369, 177 N.W. 337 (1920). This therefore being an equitable action in rem to transfer the title of the allegedly unlawful machines from the owner to the State, see Neb.Rev.Stat. § 28-1111 (Reissue 1989), we apply the usual rule that this court reviews equity actions de novo on the record and will reach its own conclusion independent of the findings of the trial court; provided, however, where credible evidence is in conflict on a material issue of fact, we will consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts over another. Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990); Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990); Neb.Rev.Stat. § 25-1925 (Reissue 1989).

Schmit Industries has assigned 19 errors, which combine to claim that (1) the statutes upon which the forfeitures are based violate various provisions of the federal and state Constitutions, and (2) the district court erred in concluding that the machines were gambling devices possessed in violation of Neb.Rev.Stat. § 28-1107 (Reissue 1989).

This case was submitted to the district court on stipulated facts, which reveal that in exchange for a 25-cent payment, the machines grant the player five simulated poker hand replay credits. The player can wager one to eight replay credits per hand played, and the machines will award replay credits if the player obtains a winning hand. The machines are equipped with meters which make a permanent record of the number of replay credits awarded. Accumulated replay credits can be discharged by tripping a reset switch.

On January 26, 1987, an officer of the Lincoln Police Department saw one of the machines at the Cellar Bar in Lincoln, Lancaster County, Nebraska. An unspecified number of individuals were observed playing the machine, and 92 free replay credits had been accumulated on it. The officer seized the machine, which was later found to contain $133 in quarters.

On that same day, the officer saw a second machine in Lincoln at the Spigot Tavern. A single individual was observed playing this machine, and a total of 21 free replay credits had been accumulated on it. This machine was also seized, and found to contain $140.25 in quarters.

There was no evidence or allegation that money had been given to any players of either machine in exchange for the replay credits they had accumulated.

At the time they were seized, both machines were registered and licensed with the Lancaster County assessor's office and had affixed to them mechanical amusement device stickers from the Nebraska Department of Revenue.

Schmit Industries challenges the constitutionality of Neb.Rev.Stat. § 28-1101(1) and (3) through (6) (Reissue 1989), § 28-1107, and § 28-1111, by asserting that these statutes are vague and overbroad and violate due process, contrary to the federal and state Constitutions; that they violate Schmit Industries' right to the pursuit of happiness, as guaranteed by Neb.Const. art. I, § 1; and that they impair or deny rights retained by the people under Neb.Const. art. I, § 26.

In order to have standing to challenge the constitutionality of a statute under either the federal or state Constitution, the challenger must be one who is, or is about to be, adversely affected by the statutory language in question and must show that as a consequence of the alleged constitutional violation the challenger is deprived of a protected right. State v. Fellman, 236 Neb. 850, 464 N.W.2d 181 (1991); State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).

The challenged statutes provided the basis for the forfeiture of the two machines Schmit Industries owned, and its property rights were terminated through application of the statutes. Therefore, Schmit Industries has standing to present its challenges.

Although the assignments of error mention both vagueness and overbreadth, the discussion in Schmit Industries' briefs is limited to a claim of overbreadth. Since errors which are assigned but not discussed will not be considered by this court, Horst v. Johnson, 237 Neb. 155, 465 N.W.2d 461 (1991), and State v. Cortis, 237 Neb. 97, 465 N.W.2d 132 (1991), we address only the overbreadth question.

Unlike a vagueness challenge, which questions the clarity of statutory language, an attack based on the overbreadth of a statute asserts that the questioned language impermissibly infringes upon some constitutionally protected right. See, e.g., State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990); State v. Monastero, 228 Neb. 818, 424 N.W.2d 837 (1988); State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987). The right involved here is the due process right to own and use property. See, Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917); Hibben v. Smith, 191 U.S. 310, 24 S.Ct. 88, 48 L.Ed. 195 (1903). We begin our analysis by recalling that a statute may be unconstitutionally overbroad on its face only if its overbreadth is substantial, that is, when the statute would be unconstitutional in a substantial portion of the situations to which it is applicable. State v. Kipf, supra; Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

The focus of Schmit Industries' overbreadth challenge is the definition of "gambling device," as contained in § 28-1101(5). Such an item is defined as "any device, machine, paraphernalia, writing, paper, instrument, article, or equipment that is used or usable for engaging in gambling...." As Schmit Industries correctly points out, numerous articles of personal property are usable for engaging in gambling, articles which more often than not are innocently possessed. However, § 28-1101(5) is merely definitional; innocent possession of such articles is not prohibited. In order to trigger criminal liability or subject the article to forfeiture, the article must be possessed or employed "knowing that it shall be used in the advancement of unlawful gambling activity." § 28-1107(1).

As both the district court and the State point out, the challenge is comparable to one addressed in Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982). In Casbah, the U.S. Court of Appeals for the Eighth Circuit rejected a similar challenge to a statute prohibiting the use, sale, and manufacture of...