State ex rel. Stephan v. Parrish, 555

Citation256 Kan. 746,887 P.2d 127
Decision Date22 December 1994
Docket NumberNo. 71105,No. 555,L,555,71105
PartiesSTATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General, Appellant, v. Nancy PARRISH, Secretary, Kansas Department of Revenue, Appellee, and Topeka Lodgeoyal Order of Moose, Intervenor/Appellee.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Rules of constitutional construction are stated and applied.

2. The overriding prohibition against gambling in the Kansas Constitution is found in Art. 15, § 3 which provides: "Lotteries and the sale of lottery tickets are forever prohibited."

3. It is the function and duty of this court to define constitutional provisions. The Kansas Constitution must be interpreted and given effect as the paramount law of the state, according to the spirit and intent of its framers. A legislative enactment in evasion of the terms of the constitution, as properly interpreted by the courts and frustrating its general and clearly expressed or necessarily implied purpose, is clearly void.

4. The legislature cannot authorize the playing of "games of bingo" beyond the limits permitted in Art. 15, § 3a of the Kansas Constitution.

5. Art. 15, § 3a of the Kansas Constitution grants the legislature broad powers to define games of bingo. However, in doing so, definitions adopted by the legislature must bear a reasonable and recognizable similarity to traditional bingo and other bingo-type games.

6. K.S.A.1993 Supp. 79-4701(c) defining "instant bingo," and related amendments to K.S.A. 79-4701 et seq. pertaining to instant bingo exceed the authority granted the legislature by Art. 15, § 3a of the Kansas Constitution and are therefore unconstitutional.

John W. Campbell, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

Ronald R. Hein, Hein, Ebert and Weir, Chtd., Topeka, argued the cause, and Stephen P. Weir, of the same firm, was with him on the brief, for intervenor/appellee Topeka Lodge No. 555, Loyal Order of Moose.

David J. Brown, Lawrence, argued the cause, and Charles A. Briscoe, Topeka, was with him on the brief for appellee Nancy Parrish, Secretary of Dept. of Revenue.

HOLMES, Chief Justice:

This is an action in mandamus and quo warranto filed by the State of Kansas on the relation of Robert T. Stephan, Attorney General (the State), against Nancy Parrish in her capacity as Secretary of the Kansas Department of Revenue (the Secretary). The State asserted that certain provisions of K.S.A. 79-4701 et seq., creating "instant bingo," were unconstitutional. The Topeka Lodge No. 555, Loyal Order of Moose (Intervenor) was allowed to intervene in the proceedings pursuant to K.S.A. 60-224(a)(2) and (b). The State now appeals from the ruling of the district court that the "instant bingo" provisions of K.S.A. 79-4701 et seq. are constitutionally permissible.

The background and procedure leading to this appeal will be set forth in some detail for a proper understanding of the issue before this court.

Since the admission of Kansas into the Union in 1861, Art. 15, § 3 of the Kansas Constitution has provided: "Lotteries and the sale of lottery tickets are forever prohibited." In 1971, the state legislature attempted to circumvent the anti-lottery provision with the enactment of K.S.A.1971 Supp. 21-4302. Subsection (1)(d) of the statute authorized the operation of "[a]ny bingo game or a game of chance with comparable characteristics by or for participants conducted by an organization exempt from tax." The statute was short-lived, however, and was struck down by this court in State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972), as unconstitutional under Article 15, § 3.

Following our decision in Nelson, several legislative initiatives concerning gambling, and in particular bingo, were introduced in the Kansas Legislature. One of the initiatives, S.Con.Res. 72, proposed amending the anti-lottery provision in the state constitution to permit an exception for games of bingo. The proposed amendment, which was approved by the legislature and later adopted by the people in the 1974 general election, permitted games of bingo to be conducted by certain bona fide nonprofit organizations. The amendment, Art. 15, § 3a, provides:

"Notwithstanding the provisions of section 3 of article 15 of the constitution of the state of Kansas the legislature may regulate, license and tax the operation or conduct of games of 'bingo,' as defined by law, by bona fide nonprofit religious, charitable, fraternal, educational and veterans organizations."

The 1975 legislature enacted enabling legislation, commonly known as the Bingo Act providing for the licensure, regulation, and taxation of games of bingo. L.1975, ch. 491, § 1 et seq.; see K.S.A. 79-4701 et seq. K.S.A. 79-4701(a) defined the term bingo and provided:

"(a) 'Bingo' means a game in which each participant must pay a charge and a prize or prizes are awarded to the winner or winners in which each participant receives one or more cards or in which a card or cards are included in a paper game program booklet each of which is marked off into 25 squares arranged in five horizontal rows of five squares each and five vertical rows of five squares each, with each square being designated by number, letter or combination of numbers and letters, and only the center square designated with the word 'free' with no two cards being identical, with the players covering squares as the operator of such game announces a number, letter or combination of numbers and letters appearing on an object selected by chance, either manually or mechanically from a receptacle in which have been placed objects bearing numbers, letters or combinations of numbers and letters corresponding to the system used for designating the squares, with the winner of each game being the player or players first properly covering a predetermined and announced pattern of squares upon the card or a card which is included in a paper game program booklet being used by such player or players."

In 1993, the legislature enacted a bill which authorized a new game called "instant bingo." K.S.A.1993 Supp. 79-4701(c). In amending the 18-year-old Bingo Act, the legislature modified the definition of "bingo" to include both the "games of call bingo and instant bingo." The term "call" was given to the Act's original and existing definition of "bingo." K.S.A.1993 Supp. 79-4701(c) defined the new game of instant bingo as follows:

"(c) 'Instant bingo' means a game: (1) In which each participant must pay a charge; (2) in which a prize or prizes are awarded to the winner or winners; (3) in which each participant receives one or more disposable tickets which accord a participant an opportunity to win something of value by opening, detaching or otherwise removing a cover from the ticket to reveal a set of numbers, letters, symbols or configurations, or any combination thereof; (4) which is conducted by a licensee under this act; (5) the conduct of which must be in the presence of the participants; and (6) which does not utilize any dice, normal playing cards or slot machines."

K.S.A.1993 Supp. 79-4704, K.S.A.1993 Supp. 79-4705, and K.S.A.1993 Supp. 79-4706 amended existing statutes to include provisions for the taxation and regulation of the new game of instant bingo.

Throughout this opinion we will refer to the 1993 amendments to K.S.A. 79-4701 et seq., which authorized the implementation and operation of instant bingo, or pull tabs, as it is commonly known, simply as the instant bingo amendments unless reference is being made to a specific provision thereof.

Following the legislature's enactment of the instant bingo amendments, the Secretary forwarded to the Attorney General proposed rules and regulations providing for the registration of instant bingo ticket distributors. The Attorney General refused to approve the proposed rules and regulations, stating that the operation of instant bingo violated the Kansas Constitution's prohibition of lotteries. Following the Attorney General's refusal to act, the Secretary proceeded with the registration of instant bingo ticket distributors without approved rules and regulations.

On July 1, 1993, this action was filed in the district court. Following the filing of briefs and hearings in which all parties participated, the district court ruled that the amendments included in K.S.A. 79-4701 et seq. pertaining to the new game of instant bingo were constitutional. The State timely filed this appeal.

Before proceeding further we wish to note that there evidently was some confusion surrounding the procedure in the district court. Although the State had filed a motion for summary judgment, the parties in consultation with the court off the record apparently agreed that the only issue was one of law to determine the constitutionality of the questioned statutes. The district court treated the issue accordingly, with no objection from counsel, and in doing so stated:

"As I say, I believe that counsel--all this wasn't on the record or anything--we all agreed this was going to be a question of law and that we should get it before the Court, and I don't think the Attorney General's or the Secretary's or the Intervenor's rights have been infringed on in presenting it in the manner in which it has.

"So, I think that--I'm not going to rule that there's anything improper procedurally in the case and find that it's according to--sufficiently conforms with the Supreme Court rules and the statutes and no one has been prejudiced by the procedure."

We agree with the district court judge's conclusions and the procedure utilized in this case and that none of the parties were prejudiced by the procedure followed in the district court. The argument of the State that summary judgment was granted improperly does not address a viable issue in this appeal.

The sole issue before this court is the constitutionality of the instant bingo amendments and the...

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