Fraternal Order of Eagles Sheridan v. State

• Decision Date: 10 January 2006
• Docket Number: No. 05-57.,05-57.
• Citation: 126 P.3d 847,2006 WY 4
• Parties: FRATERNAL ORDER OF EAGLES SHERIDAN AERIE NO. 186, INC., A Non-Profit Organization; Fraternal Order of Eagles Cheyenne Aerie No. 128, Inc., A Non-Profit Organization; and Dream Games of Arizona, Inc., Appellants (Plaintiffs/Petitioners-Intervenors,) v. The STATE of Wyoming by and through Jon R. FORWOOD, District Attorney for the First Judicial District; Matthew F. Redle, Sheridan County Attorney, in their official capacities enforcing the criminal laws of the State of Wyoming; the City of Cheyenne, a Municipal Corporation; and Carol Intlekofer, City Clerk, City of Cheyenne, Appellees (Defendants/Respondents).
• Court: Wyoming Supreme Court

Page 847

126 P.3d 847

2006 WY 4

FRATERNAL ORDER OF EAGLES SHERIDAN AERIE NO. 186, INC., A Non-Profit Organization; Fraternal Order of Eagles Cheyenne Aerie No. 128, Inc., A Non-Profit Organization; and Dream Games of Arizona, Inc., Appellants (Plaintiffs/Petitioners-Intervenors,) v. The STATE of Wyoming by and through Jon R. FORWOOD, District Attorney for the First Judicial District; Matthew F. Redle, Sheridan County Attorney, in their official capacities enforcing the criminal laws of the State of Wyoming; the City of Cheyenne, a Municipal Corporation; and Carol Intlekofer, City Clerk, City of Cheyenne, Appellees (Defendants/Respondents).

No. 05-57.

Supreme Court of Wyoming.

January 10, 2006.

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Gay Woodhouse and Lori Brand, Gay Woodhouse Law Office, P.C., Cheyenne, Wyoming, for Appellants.

Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Senior Assistant Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General, for Appellees State of Wyoming, Forwood, and Redle.

Michael D. Basom, Cheyenne City Attorney; and Claudia Ryan Angelos, Assistant Cheyenne City Attorney, for Appellees City of Cheyenne and Intlekofer.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, JJ, and PRICE, D.J.

VOIGT, Justice.

[¶ 1] This is an appeal from a district court order finding that certain electronic games do not meet the statutory exclusion for "bingo," and therefore constitute illegal gambling. We affirm.

ISSUES

[¶ 2] 1. Did the district court apply the appropriate rules for the construction of penal statutes?

2. Did the district court err by ignoring the municipal code of the City of Cheyenne?

3. Were the district court's findings of fact clearly erroneous?

4. Does Wyo. Stat. Ann. § 6-7-101(a)(iii)(D) (LexisNexis 2005) violate the appellants' right to the due process of law?

STATUTES

[¶ 3] Gambling is prohibited by statute in Wyoming. For many years, the definition of gambling in the prohibitory statute specified "any slot machine, game of faro, monte, roulette, lansquenette, rondo, vingt-un, commonly known as twenty-one, keno, props, or any other game played with cards, dice or other device of whatever nature, for money, checks, credits, or other representatives of value[.]" Wyo. Stat. Ann. § 6-203 (Michie 1957). "Gambling devices" were declared a nuisance, and were subject to seizure and destruction. Wyo. Stat. Ann. § 6-210 (Michie 1957). In a third statute, lotteries and other "schemes of chance" were forbidden, with the following exception: "But nothing in this section shall be construed as applying to games of chance known as raffles or other honest games, and the tickets of such games shall be sold only in this state." Wyo. Stat. Ann. § 6-213 (Michie 1957). In 1971, the "raffles exception" was expanded to read as follows: "But nothing in this section shall be construed as applying to games of chance known as raffles or bingo conducted by charitable or non-profit organizations and the tickets of such raffles or bingo shall be sold only in this state." 1971 Wyo. Sess. Laws Ch. 147, p. 190.

[¶ 4] Wyoming's criminal laws were recodified in 1982, with the relevant gambling statute taking on the following form as Wyo. Stat. Ann. § 6-7-101:

(a) As used in this article:

* * *

(ii) "Gambling" means risking any property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include:

* * *

(D) Raffles or bingo conducted by charitable or nonprofit organizations where the tickets for the raffle or bingo are sold only in this state[.]

1982 Wyo. Sess. Laws Ch. 75, pp. 573-74. Gambling devices continued to be subject to seizure and destruction. Id. The gambling statutes have since been amended several times, but not as to the definition of gambling or the bingo exclusion.¹ See Wyo. Stat. Ann. § 6-7-101. A "gambling device" continues today to be defined as "any device, machine, paraphernalia or equipment except an antique gambling device that is used or usable in the playing phases of any professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine[.]" Wyo. Stat. Ann. § 6-7-101(a)(iv). In relevant part, "professional gambling" means "[a]iding or inducing another to engage in gambling, with the intent to derive a profit therefrom[.]" Wyo. Stat. Ann. § 6-7-101(a)(viii).

FACTS

Procedural Background

[¶ 5] In 2004, numerous prosecutors in Wyoming either took action, or threatened to take action, to shut down the electronic "bingo" games being conducted in their respective jurisdictions.² Several court actions for declaratory relief followed.³ After consolidation of cases and withdrawal of some parties, the current appellants are the Sheridan and Cheyenne Eagles Aeries and Dream Games of Arizona (Dream Games). Dream Games, a for-profit Arizona corporation, is the manufacturer and owner of the proprietary software and hardware entitled "Fast Action Bingo," the game being conducted by the Eagles Aeries. The current appellees are the State, through its prosecutors in Sheridan and Cheyenne, and the City of Cheyenne.

[¶ 6] After a bench trial, the district court concluded that (1) because profits were shared with "for-profit" entities, the electronic bingo games were not being conducted by non-profit organizations, and were not, therefore, exempt from the statutory prohibition; (2) electronic bingo machines are illegal gambling devices; and (3) the gambling statutes are not unconstitutional. In reaching those conclusions, the district court relied directly upon our holding in 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, 694 P.2d 711 (Wyo.1985).

Glossary

[¶ 7] 1. Bingo. Subject to the analysis below, we will begin with a discussion of the general nature of the game called "bingo." In that regard, it must first be said that even "traditional" bingo can be played in a variety of ways and may be known by a variety of names, such as call bingo or session bingo. It is a form of lottery derived from the Italian National Lottery — Lo Giuoco del Lotto d'Italia — which has been around since the 16th century. John Scarne, Scarne's New Complete Guide to Gambling 208 (Simon and Schuster 1974). The game became popular in the United States during the 1920s. Id., 207-15. Different dictionaries give slightly different definitions of the word "bingo": "A gambling game, resembling lotto, usually with many players." Webster's New Twentieth Century Dictionary of the English Language Unabridged 184 (2d ed.1961). "A game resembling lotto or keno, the card used being a grid on which five numbers that are covered in a row in any direction constitute a win, the center square being counted as an already drawn number — called also beano." Webster's Third New International Dictionary of the English Language Unabridged 217 (1993). "[A] game of chance played with cards having numbered squares corresponding to numbered balls drawn at random and won by covering five such squares in a row; also: a social gathering at which bingo is played." Merriam-Webster's Collegiate Dictionary 114 (10th ed.1999).

[¶ 8] Those witnesses who testified about session bingo described it as a game played by multiple players who manually mark their individual paper cards in response to random numbers drawn and called as the game progresses. Traditional bingo cards used in session bingo utilize a twenty-five space grid, with the goal being to match the requisite pattern of spaces. There is a winner in every session bingo game, that being the first person to shout "bingo" upon achieving the appropriate pattern. While all agreed that session bingo is a game of chance, they identified an element of skill in it, that being paying attention and timely shouting "bingo." The non-profit organization buys certain supplies and equipment for session or call bingo, but does not pay any portion of the profits to another entity, such as a supplier or distributor. In its findings of fact, the district court described the game as follows: "In traditional session bingo, players purchase bingo cards containing numbers which are to be matched in various patterns (depending upon the game) against numbers on balls drawn randomly from an air hopper. The numbers are called. Players mark the called numbers on their card. Players call `bingo' when they match the same pattern on their card. First bingo wins."

[¶ 9] 2. Bonanza Bingo.⁴ In Bonanza Bingo, as played at the Sheridan Eagles Aerie, fifty numbers are selected via a ball hopper or similar device and are posted in some manner. Players purchase sealed cards or tickets which, when opened, reveal a square grid containing twenty — four numbers (five columns of five numbers each, with a center "free" spot).⁵ The goal is to obtain a "blackout" — meaning that all twenty-four numbers on the card match numbers previously drawn from the hopper. If no player wins, additional numbers are drawn and added to the original fifty, until there is a winner. Because the numbers are pre-drawn, and because the sealed cards are simply played against those numbers, there is no "session" or "call."⁶ The game differs somewhat as played at the Cheyenne Eagles Aerie.⁷ There, the sealed tickets are similar, but only twenty-four numbers are pre-drawn and posted. Apparently, there are several winners each day.

[¶ 10] 3. Quick Shot Bingo. The record is not totally clear as to the nature and characteristics of Quick Shot Bingo, or whether there is any distinction between Quick Shot Bingo and Bonanza Bingo. For instance, several exhibits, including player's cards and information sheets, refer to one game as "Quick Shot Bonanza Bingo." Andrew Burns, a Casper "software architect"...