Summary 2006 WY 4

Summary of Decision issued January 10, 2006

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Case Name: Fraternal Order of Eagles Sheridan Aerie No. 186 v. State

Citation: 2006 WY 4

Docket Number: 05-57

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellants (Plaintiffs/Petitioners-Intervenors): Gay Woodhouse and Lori Brand, Gay Woodhouse Law Offices, PC, Cheyenne, Wyoming.

Representing Appellees (Defendants/Respondents) State of Wyoming, Forwood and Redle: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Senior Assistant Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General.

Representing Appellees (Defendants/ Respondents) City of Cheyenne and Intlekofer: Michael D. Basom, Cheyenne City Attorney; and Claudia Ryan Angelos, Assistant Cheyenne City Attorney.

Date of Decision: January 10, 2006

Issues: Whether the district court applied the appropriate rules for the construction of penal statutes. Whether the district court erred by ignoring the municipal code of the City of Cheyenne. Whether the district court’s findings of fact were clearly erroneous. Whether Wyo. Stat. Ann. § 6-7-101(a)(iii)(D) violates the Appellants’ rights to the due process of law.

Holdings: 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 statutory prohibition; (2) electronic bingo machines are illegal gambling devices; and (3) the gambling statutes are not unconstitutional. This decision includes a glossary of terms in the facts section.
The specific allegation in the instant case is that the district court failed to apply the “rule of lenity” in constructing the gambling statutes, which the appellants characterize as penal statutes. Neither party contends that the statutes are ambiguous, and the district court did not find them to be ambiguous. The Court agreed. Without ambiguity, statutory construction is inappropriate. The rule of lenity that applies to penal statutes, being a rule of construction, has no role to play. The Court summarily affirmed the district court decision on this issue.
The City of Cheyenne has enacted an ordinance entitled “Bingo and Pull Tabs” to “regulate, license, and monitor the conduct of games of chance known as bingo and pull tabs”. Statutory interpretation is a question of law that is reviewed de novo. Appellants provided no authority for the proposition that, in giving effect to the plain meaning of a statute, courts are bound to apply a definition adopted by a local municipality in its ordinances. The Court declined to adopt Appellant’s line of reasoning.
Findings of fact will not be set aside unless they are clearly erroneous. The party claiming that its conduct falls within an exception to a statutory prohibition bears the burden of proving that proposition. The Court discussed 37 Gambling Devices v. State and confirmed that the district court was correct in concluding that the legislature did not intend the bingo exclusion, to extend to games in which the profits go, in anything more than an incidental fashion, to a profit-making person or organization. The Court concluded that the district court found and concluded correctly in the end that the specific electronic game, Fast Action Bingo, was not similar in nature to the game of bingo excluded from gambling in 1971. With one exception, the district court’s findings of fact were not clearly erroneous. The exception was that because there was a dearth of evidence suggesting that traditional bingo is not subject to manipulation, the Court concluded that the district court’s findings to that effect was clearly erroneous. The findings support the district court’s remaining legal conclusions. The evidence clearly showed the vast differences between traditional bingo and Fast Action Bingo. The latter is illegal because it is not the game of bingo excepted from the statutory ban and because it utilizes gambling devices to induce people to gamble, with Dream Games’ intent of deriving a profit therefrom.
The Court reviewed the record and determined that Appellants had abandoned any facial challenge to the gambling statute. They addressed only the as-applied challenge. Appellants contended that “this Court should determine that the statute is clear in excluding all forms, variations and mediums of bingo conducted by non-profit organizations from the statutes own definition of gambling.” The district court did just that when stating that bingo is legal, but that Fast Action Bingo is not bingo, and therefore illegal. The district court said that bingo conducted by a non-profit is legal but that Fast Action Bingo is not being conducted by a non-profit and therefore it is illegal. The Court agreed.
The fact that Appellants got away with violating the statutes for quite some time does not equate to arbitrary and discriminatory prosecution in their present situation. The record is totally devoid of any evidence explaining the various prosecutor’s apparently individual decisions to threaten or pursue prosecution under the gambling statutes. In the absence of such evidence the Court was unwilling to presume impermissible motives.

The district court was correct in all of its major conclusions, which are inter-related: (1) Fast Action Bingo is not statutory bingo; (2) Dream Games operates Fast Action Bingo, thereby inducing others to engage in gambling, with the intent to derive a profit therefrom; (3) Fast Action Bingo equipment and machines are gambling devices because they are used in the playing of that operation; and (4) the statutes are not unconstitutionally vague as applied to Fast Action Bingo.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/exr73 .